MARUDANAYAGAM PILLAI Vs. P K VENKATASWAMI NAIDU

JUDGEMENT

(1.) THIS second appeal is by the first defendant in a suit for setting aside an earlier decree in a mortgage suit. O. S. NO. 634 of 1943 on the file of the District Munsif, tiruchirapalli for a declaration that the court sale therein is not valid and binding on the plaintiff and for restraining defendants 1 and 2 in the suit and their men and agents from interfering with the ownership and possession of the plaintiff and his lessee, the third of the suit A schedule property in the possession of the plaintiff and his lessee, the third defendant in the suit, and for other reliefs. There has been no appearance before me for the legal representatives of the plaintiff, the plaintiff dying pendente lite. As the record revealed that there has been not contest between the parties, at the instance of the court, Sri S. V. Jayaraman, advocate, has appeared amicus curiae to represent the case for the contesting respondents.

(2.) THE earlier suit O. S. No. 634 of 1943 was instituted by the present appellant as plaintiff on a mortgage executed in favour of the predecessor of first defendant's assignor by one Gurunatha Asari. In that suit, the present plaintiff was made the second defendant and the second defendant in the present suit was impleaded as the fifth defendant. Several items of properties were the subject of the mortgage and with reference to the impleading of defendants 2 to 6 in that mortgage suit, the plaint therein stated that defendants 2 to 6 were claiming rights in the properties by subsequent alienations or as tenants and that they were bound by the mortgage claim, that is the present plaintiff was impleaded as a person bound by the mortgage. He entered appearance in the first instance and filed his written statement wherein he inter alia pleaded that he was an unnecessary party to the suit as he claimed adversely to the mortgagor and his rights were paramount to that of the mortgagor and mortgagee. It was set out in his written statement that one Appavu Asari was the original owner of the properties and that the present plaintiff has acquired title to the property from him bona fide and for valuable consideration prior to devolution of title on the present appellant' mortgagor from the said Appavu Asari. Bur after filing his written statement, the present plaintiff remained ex parte and there was a mortgage decree in the suit with the consent of those parties that had entered appearance.

(3.) THE subject of the dispute in the present proceedings is in relation to item 3 in that mortgage suit and the decree therein provided that a moiety of this item 3 and item 1 should be sold for recovery of a sum of Rs. 500. A moiety of item 3 it was stated in the decree belonged to the fifth defendant therein, the second defendant in the present proceedings. The remaining moiety of item 3 as belonging to the second defendant therein that is the plaintiff in the present proceedings was to be sold for the recovery a sum of Rs. 400 with subsequent interest. It transpires that the fifth defendant, the present second defendant, had settled his claim with the mortgagee decree-holder and the mortgagee proceeded in execution against the remaining moiety. In the present suit, the then second defendant as plaintiff besides challenging the validity of the decree, pleading fraud and collusion by his then advocate with the mortgagee plaintiff and others, contended that the property he was in possession of and sought to be proceeded against was not the subject of the mortgage decree. He pleaded that the third item in the mortgage suit O. S. No. 634 of 1943, was totally different from the property he was in possession of and that it was wrongly sought to be proceeded against as the subject of the mortgage decree. In the plaint he has set out two schedules of properties. The A schedule property is stated to be the property which he held as his own and which, it is stated, was not subject to the mortgage. The B schedule property is the property as described in the mortgage. The B schedule property is the property as described in the mortgage suit and in the decree that followed. A reference to the Schedules would show that the A Schedule claimed by the plaintiff is not the subject of the mortgage and the B schedule admittedly the subject of the mortgage bears the same survey number T. S. 1156. The boundaries of both A and B schedules by reference to the survey numbers of the boundary fields are also the same. However, the descriptive boundaries of the properties differ and apparently differ rather widely. The A schedule property, which the plaintiff claims is not bound by the mortgage, is stated to be in the northern row of Pudu Theru and the B schedule property the subject of the mortgage decree is shown in the decree as in the southern row of Pudu Theru. For the plaintiff, certain other discrepancies and differences in the boundaries are relied upon. The trial court rejected a contention of the plaintiff that the decree in the mortgage suit was a nullity for the reason that it was passed in terms of a compromise to which the plaintiff was not a party. It must be appreciated that an ex parte decree in terms of prayer in the plaint could have been more onerous, as the decree could be for the full mortgage amount. The plea of fraud and collusion by his counsel in the earlier suit was found against. As regards the identity of the properties, it was inter alia pointed out that the present plaintiff had not raised any objection or protest as regards identity in the execution proceedings though he has taken other objections. The question whether the survey numbers or the descriptive boundaries which also to a certain extent were vague, should prevail was found in favour of the decree-holder, and the learned District Munsif held that it was idle on the part of the plaintiff to contend that the property brought to sale and purchased under the mortgage decree was not T. S. 1156, but something different from it. The learned District Munsif further held that the objection raised by the plaintiff to the execution of the decree was one that would come under S. 47 C. P. C. and that a suit was barred.