T.M. RAMAKRISHNAN CHETTIAR ALIAS MANNAR KRISHNAN CHETTIAR AND ORS. Vs. G. RADHAKRISHNAN CHETTIAR AND ORS.

JUDGEMENT

(1.) THIS appeal arises out of an order by the learned Subordinate Judge of Trichinopoly who allowed the first respondent's application to correct a mortgage deed, a judgment, a preliminary decree and the final decree passed upon the mortgage deed. The first appellant is the original mortgagor, the other two appellants are his grandsons, and the first respondent is the assignee of the original mortgagee. The mortgage was created in 1922 in favour of one Vadivelam Pillai in respect of three items of property including one to which I will refer as No. 1467. In 1928 a preliminary decree was passed followed by the final decree in 1929. Shortly thereafter, the mortgagee discovered mat the mortgagor had no title to No. 1467 and in 1930, in E.A. No. 494 of 1939, he applied for attachment of property No. 1466 to which, it is apparently common ground, the mortgagor had a title. That application was ordered and attachment was effected. Nothing further was done for nearly three years. In 1933 the mortgagee decree -holder assigned the decree to the present first respondent who was the petitioner in the Court below. At the time of the assignment, it was apparently manifest that the mortgagor had no title to property No. 1467 and there was no recourse to that property by virtue of the mortgage deed and the preliminary and final mortgage decrees in the suit. Eight years later, the assignee decree -holder brought the property No. 1467 to sale in execution of the final mortgage decree, and at the sale he became the purchaser. The sale was confirmed shortly after it took place and satisfaction for the amount paid for it was entered up in the decree.

(2.) WHEN the assignee decree -holder purchaser went to take possession, he was obstructed by one of the sons of the first appellant. An application to remove the obstruction was made at the instance of the assignee decree -holder; it was ordered by the Subordinate Judge's Court in 1943. On appeal to this Court in 1944, the appeal was allowed, and certain observations were made during the course of the judgment upon which the learned counsel for the respondent placed some reliance.

(3.) THE learned Subordinate Judge allowed the application and altered or corrected the instrument to which I have referred, by substituting, in the deed and decrees, properties Nos. 1463 and 1466 in place of property No. 1467 as part of the hypotheca of the mortgage deed and properties which were to be subject to the effect of the mortgage decree.