ENI AMMAL Vs. SOOSAI MICHAEL MUDALIAR

JUDGEMENT

(1.) The plaintiff, who succeeded in the trial Court but lost before the lower appellate Court, is the appellant. She filed the suit for redemption of an othi under Exhibit A-1 dated 6th May, 1955 executed by her husband Mayakrishna Konar in favour of one Mayilerumperumal. Mayakrishna executed a settlement deed dated 21st April, 1964 in favour of the appellant and subsequently cancelled it and deserted her. Thereafter he executed an othi deed, Exhibit A-1, dated 6th May, 1955 in favour of Mayilerumperumal. The appellant filed O.S. No. 168 of 1955 in the District Munsif's Court, Ambasamudram, against her husband Mayakrishna for partition and separate possession of a half share and also for her maintenance on a charge of certain properties, including the present suit properties, impleading the mortgagee Mayilerumperumal as the second defendant in the suit. She obtained a preliminary decree for partition and maintenance at Rs. 15 per mensem on a charge of the suit properties subject to the suit under Exhibit A-1 on 9th July, 1956 and she obtained the final decree, Exhibit A-7, on 5th August, 1957. Subsequently she filed E.P. No. 430 of 1966 and brought the suit properties to sale for arrears of maintenance due to her under the decree in O.S. No. 168 of 1955 and purchased the property herself subject to the othi under Exhibit A-1 under the sale certificate, Exhibit A-3 and obtained delivery of symbolical possession of the property under Exhibit A-4 in E.A. No. 39 of 1968. Mayilerumperumal, the mortgagee under Exhibit A-1, had assigned the othi right in favour of the appellant after the date of the maintenance decree, under Exhibit B-4, dated 17th March, 1958. Subsequent to the maintenance decree the respondent, in execution of a money decree obtained by him against the appellant's husband Mayakrishna in C.S. No. 92 of 1958 on the file of the Village Panchayat Court, North Veeravanallur, brought the properties to sale in E.P. No. 85 of 1960 and purchased them himself under the sale certificate, Exhibit B-1, dated 3rd June, 1960 and took delivery of possession of the properties on 10th August, 1960 under Exhibit B-2. The assignment under Exhibit B-4 and the Court sale under Exhibit B-1 purusant to the decree in C.S. No. 85 of 1960 were affected by lis pendens and were not binding on the appellant. The Court sale under Exhibit B-1 cannot have any priority over the Court sale under Exhibit A-3, held under a charge decree. The appellant is, therefore, entitled to redemption of the usufructuary mortgage covered by Exhibit A-1.

(2.) The respondent's defence was that he is a bona fide purchaser for value without notice of the charge created by the decree in O.S. No. 168 of 1955 and that the sale in favour of the appellant is long after the Court sale in favour of the respondent and it cannot prevail against the latter. The othi under Exhibit A-1 had ceased to exist by reason of the purchase of the equity of redemption in the properties in the Court sale under Exhibit B-1 by the respondent. There is, therefore, no othi to be redeemed and the appellant is not entitled to redemption.

(3.) The trial Court found that the respondent is not a bona fide purchaser for value without notice of the charge on the ground that the assignment deed, Exhibit B-4, refers to the decree in O.S. No. 168 of 1955, and that the respondent, the purchaser in execution of a simple money decree, is bound by the charge, and the sale under Exhibit B-1 has not put an end to the othi. On these findings the trial Court decreed the suit with costs.