SAMBANDAN Vs. KUNJAMMAL

JUDGEMENT

(1.) THIS appeal has been preferred against the decree and judgment passed in O. S. No. 2539/1981 on the file of the IV Additional Judge, City Civil Court, Chennai.

(2.) THE plaintiff is the appellant herein. The plaintiff has filed the suit for recovery of possession and also for recovery of Rs. 12,600/- towards past mean profits and also for future mean profits at the rate of Rs. 350/- per month. According to the plaintiff, the plaint schedule property originally belonged to the first defendant. The first defendant, her husband-second defendant along with defendants 3 to 5 have executed a mortgage deed on 28. 10. 1963 in favour of Sasvatha Ratchaga Nithy, Nungampakkam for a loan of Rs. 25,000/ -. As per the terms and conditions of the said mortgage deed, in case of default in repayment of the loan amount, as per section 69 of the Transfer of Property Act, the mortgagee his entitled to bring the mortgaged property in public auction to realize the mortgage loan amount. The defendants subsequently obtained a loan of Rs. 10,000/- on 20. 5. 1971 from Baluseri Funds and executed another mortgage deed in respect of the Plaint schedule property. Subsequently on 30. 12. 1972 the defendants have executed another mortgage deed for Rs. 5,000/- in favour of one Radhakrishnan in respect of the same Plaint schedule property. Since the defendants have failed to repay the mortgage amount to Sasvatha Ratchaga Nithy, Nungampakkam, they have brought the suit property in public auction and on 05. 02. 1972 the plaintiff had taken the said property in public auction for Rs. 37,900/- and the plaintiff paid the entire sale amount on 15. 07. 1975 and obtained the sale deed. So from that date onwards the plaintiff is entitled to get recovery of possession from him. The defendants filed O. S. No. 1470/1972 for declaration that the auction which took place on 5. 2. 1972 is null and void. The said suit was dismissed on 25. 8. 1978. Even though the auction was conducted on 5. 2. 1972 due to the suit viz. O. S. No. 1470/1972 filed by the first defendant, there was a delay in registration of the sale deed which took place only on 15. 7. 1975. The plaintiff had issued suit notice on 20. 3. 1979 to the defendants for recovery of possession and he also claimed mean profits at the rate of Rs. 3,500/- per month. The plaintiff restricts his claim for mesne profits to three years prior to the filing of the suit.

(3.) THE defendants 2 to 5 have adopted the written statement filed by the first defendant which runs as follows: these defendants have executed the Plaint mentioned mortgage deeds. As per Section 69 of the Transfer of Property Act, the auction was not conducted in proper manner. There was no proper auction notice given before the auction. The first mortgagee and the third mortgagee have jointly taken the suit property in auction in the name of the plaintiff, who is none other than the wife of the third mortgagee. Hence the above said auction is not maintainable. Radhakrishnan has given Rs. 10,000/- to the first mortgagee towards his mortgage by way of cheque. The said Radhakrishnan had made arrangements to stop payment to the about said cheque which necessitated the auction. Hence the suit is liable to be dismissed. The first defendant had filed an additional written statement containing that the auction sale in favour of the wife of mortgagee-Radhakirshnan is not valid under law. The second defendant in his written statement would contend that the auction was not conducted as per the Rules. 25% of the bid amount was not deposited on the date of auction itself. The balance amount was also not paid within fifteen days. But the sale deed was executed only on 15. 07. 1975. As per the sale deed dated 15. 07. 1975 three years time was granted for the plaintiff to pay the sale consideration. But the said Sasvath Ratchaga Nithy, Nungampakkam has no right to do so. Hence, the public auction is not legally valid. Even though it is stated that the property was sold in the public auction for Rs. 37,900/-, the registration charge has been shown as Rs. 1,00,000/ -. The first Defendant died during January-1977. This fact was known to the plaintiff even at the time of second Appeal. Hence, the suit is liable to be dismissed.