MARIMUTHU Vs. AMBUJAM AMMAL AND ANR.

JUDGEMENT

(1.) THE plaintiff is the appellant. One Bangaru Naicker was the original owner of the suit property. He mortgaged the property in favour of the plaintiff on 9th January, 1962 for a sum of Rs. 400. The plaintiff filed a suit O.S. No. 248 of 1968 on the said mortgage and obtained a preliminary decree and then a final decree. The suit property was brought to sale by the plaintiff in E.P. No. 328 of 1969 and with the Court's permission he purchased the same in the Court -auction -sale held on 11th February, 1970. The sale was confirmed on 28th March, 1970 and the plaintiff took delivery of possession of the property through Court on 20th July, 1970 in E.A. No. 1049 of 1970. The first defendant had also advanced money on a mortgage of the same property and the said mortgage was subsequent to the one in favour of the plaintiff. The first defendant filed a suit in O.S. No. 911 of 1967 against the mortgagor Bangaru Naicker and in execution of the decree, brought the property to sale. After getting permission of the Court, she purchased the same in the Court -auction held on 7th January, 1970. The sale was confirmed and the first defendant took delivery of possession of the property through Court on 17th October, 1970. The plaintiff brought the present suit for an injunction to restrain the defendants, their men and others from interfering with his peaceful possession and enjoyment of the suit property and for costs.

(2.) THE first defendant resisted the suit on the ground that the Court -auction -sale in her favour being on 7th January, 1970 there was nothing that could have been sold to the plaintiff on 11th February, 1970 and that as such the subsequent Court -auction -sale in favour of the plaintiff was not binding on the first defendant. It was, therefore, submitted that the plaintiff could not claim any right in pursuance of the subsequent Court -auction -sale held on 11th February, 1970. It was also stated that the plaintiff was not in possession of the suit property and that there was no cause of action for the suit.

(3.) LEARNED Counsel for the appellant submitted that the mortgage in favour of the appellant was earlier in point of time and that he had also taken delivery of the property earlier than the first respondent. According to him, he was entitled to be in possession of the property and he had no objection to redeem the second mortgage within any reasonable time. Learned Counsel for the first respondent submitted that the sale in favour of the first respondent in the Court -auction being earlier in point of time, it is this sale which is valid and that on the date, when the property was again sold at the instance of the appellant on 11th February, 1970 there was nothing which could have been sold. According to him, the appellant is not entitled to the relief of injunction because the first respondent is entitled to the property subject, of course, to her discharging the mortgage in favour of the appellant.