A.M.A. FIRM BY MANAGING PARTNER MURUGAPPA CHETTIAR IN THE PLACE OF A.M.A. PALANIAPPA CHETTIAR Vs. MARUDACHALAM CHETTIAR (DIED) AND ORS.

JUDGEMENT

(1.) THIS second appeal is preferred by the plaintiff whose suit was decreed by the District Munsiff, Tirupur, but dismissed on appeal by the District Judge, Coimbatore.

(2.) ONE Sivasubramania Chettiar and four others executed on the 18th April, 1925, a security bond in favour of the defendants 9 to 13 and the father of the plaintiff and the father of defendants 8 and 14. Suit O.S. No. 301 of 1928, Sub -Court, Coimbatore, was filed to enforce the security bond against the suit house and other properties. Defendants 4 to 7 who were not the executants of the security bond contested the claim and the suit as against their 1/3rd share in the suit house was dismissed and a preliminary decree against the 2/3rd share of the executants was passed on 12th November, 1932 (Ex. P -1). While that suit was pending the Tirupur Municipality instituted suit O.S. No. 943 of 1930 in the District Munsiff's Court, Tirupur, for recovery of arrears of property tax due in respect of the suit house for the years 1927 -28, 1928 -29, and 1929 -30 and claimed a first charge on the suit house under Section 85 of the Madras District Municipalities Act. To that suit, the persons holding the security (who may be hereafter termed second mortgagees) were not impleaded as parties, though they were interested in the right of redemption. The Municipality obtained a decree and in execution of that decree the suit house was brought to sale and one Kumaraswami Chetty became the purchaser on 23rd August, 1932. The auction purchaser sold the property to defendants 1 and 2 under a sale deed dated 13th June, 1934. In execution of the final decree in O.S. No. 301 of 1928, the plaintiff and defendants 8 to 15 pur -chased 2/3rd share of the suit house on 15th January, 1936, and obtained symbolical possession on 9th December, 1938.

(3.) THE defence to the action is that the second mortgagees are not necessary parties to the first mortgagee's suit; that the decree in O.S. No. 943 of 1930 is binding on the second mortgagee purchasers; that they are not liable to account for mesne profits and that the defendants are in any event entitled to the value of improvements. They also plead that the right of defendants 4 to 7 in the suit house became, extinguished by reason of the sale in pursuance of the decree in O.S. No. 943 of 1930.