PALANISWAMI GOUNDAN Vs. RAMASWAMI GOUNDAN AND ANR.

JUDGEMENT

(1.) THIS appeal raises two points of law, (1) whether the suit was maintainable and (2) whether it was barred by limitation.

(2.) THE facts of the case have been fully and accurately set out in judgments of the lower Courts and also in that of Wadsworth, J., in the second appeal. We need not restate them except to the extent necessary for appreciating the contentions of the parties. One Sinnayya Goundan executed a mortgage deed, Exhibit P -1, dated 12th July, 1922, in favour of one Periya Goundan for a sum of Rs. 500. On 24th June, 1924, the same Sinnayya Goundan executed a second mortgage deed in regard to the same property in favour of one Rama Boyan. On 24th September, 1928, Sinnayya Goundan for himself and as guardian of his then minor sons executed a usufructuary mortgage in favour of Periya Goundan, that is, the mortgagee under Exhibit P -1 and also another by name Sinnammal for a sum of Rs. 1,300. The consideration for the mortgage was made up of two items; (1) a sum of Rs. 650 due to Periya Goundan under Exhibit P -1 and (2) a sum of Rs. 650 paid by Sinnammal to the mortgagor. On 10th September, 1929, under Exhibit P -3 Periya Goundan assigned his half share of right in the mortgage dated 24th September, 1928, in favour of first plaintiff for a sum of Rs. 650. Rama Boyan filed O.S. No. 275 of 1940, in the file of the District Munsif's Court, Tirupur, to enforce his mortgage impleading Ramaswami and Chinnammal as defendants 3 and 4. Ramaswami and Chinnammal filed written statements setting up rights to priority by reason of their discharging, Exhibit P -1 by executing the usufrucuary mortgage deed, Exhibit P -2. Exhibit P -4 is the copy of the Judgment, dated 22nd August, 1941 in that suit. The learned District Munsif found in their favour and gave a declaration that they were entitled to priority in respect of the principal amount covered by Exhibit P -1. In execution of the decree in that suit the mortgage properties were sold and purchased by the defendant subject to the prior mortgage dated 12th July, 1922, and he obtained possession on 14th April, 1943. Ramaswami and Chinnammal filed O.S. No. 321 of 1943, on the file of the Court of the District Munsif of Tirupur on 14th July, 1943 to enforce their mortgage rights under the mortgage deed, dated 12th July, 1922, against the auction -purchaser, Palaniswami Goundan in execution of the decree in O.S. No. 275 of 1940. He was the sole defendant to the suit. He raised various contentions which are reflected in the following issues:

(3.) THE learned Counsel for the appellant raised again the two points which were argued by him before Wadsworth, J., without success. His first contention was that the first plaintiff could not maintain the suit as there was no assignment of the prior mortgage, Exhibit P -1, in his favour, and that he could not maintain the suit on the Judgment in O.S. No. 275 of 1940, because that Judgment merely declared a pre -existing priority and did not purport to create any charge. This argument ignores the scope of the decision in O.S. No. 275 of 1940, and the legal effect of the purchase by the defendant of the property subject to the rights of the parties declared in that suit. As we have already stated to that suit the present plaintiffs were impleaded as defendants 3 and 4 and the learned District Munsif declared the right to priority in favour of defendants 3 and 4 in respect of the principal amount of Rs. 500, under Exhibit P -1. The relevant portion of the Judgment reads as follows: