CHINNAH GOUNDAN Vs. SUBRAMANIA CHETTIAR

JUDGEMENT

(1.) THIS is an appeal against a preliminary mortgage decree passed by the subordinate Judge of Vellore O. S. No. 89 of 1949. Defendants 2 to 4 (sic) are the plaintiffs. The three items of properties which are the subject-matter of the decree originally belonged to two persons. Mottayya and Ramaswami. They mortgaged the properties in the year 1921 under three documents, Exs. A-1, A-2 and A-3, to one Venkatachala. Venkatachala in turn executed a mortgage on 1-2-1923 under Ex. A-4 in favour of one Muthukumara whereby he created a security over his mortgage rights acquired under Exs. A-1 to A-3 and his other properties for a sum of Rs. 7500. Muthukumara, whose interests with regard to that debt subsequently devolved on his brothers Narayanaswami, was then in the position of a sub-mortgagee with reference to the suit properties. A few months later Venkatachala purchased the equity of redemption in the suit properties from Mottayya and Ramaswami. In 1929, Venkatachala mortgaged under Ex. B-2 his interest in the suit properties to one Vaidyalinga. In execution of a money decree against Venkatacliala, his rights, viz. , the equity of redemption in the suit properties, were sold in court auction, and purchased by one Nalesa, natesa obtained possession of the suit properties through court in February 1934. Thereafter Narayanawami filed O. S. No. 3 of 1936 in the District Court of North arcot at Vellore, for enforcing the mortgage Ex. A-4. While Vaidyalinga, the subsequent mortgagee of the said properties was impleaded as a party to that suit, Natesa, the owner of the equity of redemption, was not so impleaded. The suit properties were mentioned as items Nos. 9, 12 and '13 in that suit but in view of the fact that Natesa was not impleaded there was no effective representation of the persons interested in the right of redemption of Exs. A-1 to A-3. In O. S. No. 3 of 1936 a preliminary mortgage decree was passed on 31-8-1938 and the same was followed by a final decree on 29-10-1940. In the interval, that is, on 1st May 1940 Vaidyalinga purchased the rights of Natesa in the suit properties. The decree-holder Narayanaswami filed E. P. No. 35 of 1942 for sale of the mortgaged properties including the suit properties. Vaidyalinga objected to the sale of the suit properties on the ground that his predecessor-in-title, Natesa, the owner of the equity of redemption was not a party to the suit and, therefore, the decree could not bind his interests. The executing court overruled the objection and directed the suit properties to be sold. Against that order Vaidyalinga preferred an appeal C. M. A. No. 368 of 1946 to this court. Lakshmana Rao and Horwill JJ. , who heard the appeal held that as natesa was not made a party to the suit, neither he nor Vaidyalinga who subsequently obtained his rights would be bound by the decree regarding the suit properties. But as there was no finding by the executing court as to whether those persons did acquire the rights claimed, the learned Judges remitted the case to the executing court for an enquiry in that regard and directed that if it was proved natesa acquired the equity of redemption in the suit properties prior to the institution of O. S. No. 3 of 1936 and that Vaidyalinga acquired those rights from him, the court should proceed to sell only the mortgage right under Exs. A-1 to A 3. But if on the other hand Vaidyalinga failed to prove those points, the suit properties, that is, those covered By Exs. A-1 to A-3 could themselves he sold. In furtherance of the order of remand, the District Judge of North Arcot enquired into the matter and held that Natesa had validly acquired the equity of redemption in the suit properties prior to the institution of O. S. No. 3 of 1938 and that vaidyalinga had acquired his rights. He, therefore, directed execution should proceed not against the properties as such but by sale of the mortgage rights under Exs. A-l to A-3. That order has become final between the parties.

(2.) THE decree-holder put up the other mortgaged items for sale and purchased them himself. He then assigned the decree to the plaintiff in the present suit. Conformably to the order of the court, the plaintiff sought execution for the realisation of the balance due under the mortgage decree by sale of the mortgage right over the suit proper-lies. That was by his application in E. P. No. 15 of 1946 which resulted in the sale of the mortgage right, the plaintiff himself becoming the purchaser. The sale certificate Ex. A-10 which was issued to him specifically stated that what was only sold was the mortgage right. In the meanwhile Vaidyalinga's rights had been acquired by defendants 2 to 4.

(3.) THE plaintiff thereupon instituted the present suit for recovery of Rs. 5250 as representing the balance due under the mortgage decree (after some small remission) and prayed for the sale of the properties covered by Exs. A-1 to A-3. Paragraphs 7 and 8 of the plaint make it clear that what was sued for was the balance of money due under Ex. A-4 and not that due under Exs. A-1 to A-3. The case for the plaintiff was that as the equity of redemption in the suit properties was not sufficiently represented in the previous suit, he by the present suit was giving an opportunity to the defendants to redeem the properties and if the defendants failed to redeem, a decree for sale of the properties should be passed. The defendants raised several contentions regarding the maintainability of the suit and they were embodied in the several issues framed in the case. Before the learned Subordinate Judge it was specifically stated on behalf of the plaintiff that the suit was not one to enforce the mortgages Exs. A-1 to A-3. The learned subordinate Judge held that the plaintiff's claim was based neither on Ex. A-4 nor on Exs. A-1 to A-3, but on the judgment in O. S. No. 3 of 1936 which according to him gave the mortgagee a fresh cause of action. In that view he did not give any finding on the question whether the mortgages under Exs. A-1 to A-3 were valid, duly executed and supported by consideration or whether the claim thereunder was within the period of limitation. After disposing of certain other issues with which we are not concerned in this appeal, he passed a preliminary mortgage decree for sale of the Suit properties. That decree is the subject of this appeal by defendants 2 to 4.