VEERAMMAL Vs. KRISHNAN

JUDGEMENT

(1.) THE point that arises for consideration in this appeal filed by the third defendant is whether a purchaser in execution of a decree obtained on a prior mortgage in a suit to which the subsequent mortgagee is not a party is entitled to redeem the subsequent mortgage. Defendants 1 and 2, the owners of the suit property, had executed a simple mortgage over the suit property in favour of one Pakkirisami pandithan and subsequently executed a usufructuary mortgage in favour of the third defendant, the appellant herein, under a document dated 7-6-1953. Pakkirisami Pandithar sued on his mortgage in O. S. 257 of 1957 on the file of the district Munsif of Trivellore, im-pleading defendants 1 and 2 alone and without impleading the 3rd defendant, the subsequent mortgagee, and obtained a decree and brought the hypotheca to sale. The plaintiff purchased the suit property in court auction and took possession in execution of the sale certificate. The third defendant applied for and obtained re-delivery on the strength of his usufructuary mortgage. Thereupon, the plaintiff instituted the suit for redemption of the usufructuary mortgage and recovery of possession. The third defendant contended that inasmuch as he was not mi-pleaded as a party in the suit instituted by the prior mortgagee, his rights as a puisne mortgagee were not affected and that as such the plaintiff was not entitled to redeem him. The trial Court accepted this defence and dismissed the suit. But in the appeal filed by the plaintiff, the lower appellate Court reversed the judgment of the trial Court and found that the plaintiff was entitled to redeem the usufructuary mortgage and accordingly granted the usual preliminary decree for redemption. It is against this decision that the. 3rd defendant has preferred this appeal.

(2.) SECTION 91 of the Transfer of Property Act enumerates the persons who may sue for redemption. Clause (a) of that section, which alone is relevant in this case, says that any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same, is entitled to redeem. The simple question in this case is whether the purchaser of the hypotheca in a suit brought on the prior mortgage without impleading the puisne mortgagee is a person having an interest in the property mortgaged or in or upon the right to redeem the same. In considering this question, it is necessary to know what exactly is -the right which such a Court auction purchaser purchases. That he gets all the rights of the prior mortgagee is undisputed. Inasmuch as the mortgagor is also a party to such a suit and inasmuch as the sale takes place in his presence, it should be taken that the right, title and interest which he had in the property including his right in the equity of redemption should also be taken to pass to the auction purchaser. When a second mortgage is created by the mortgagor, what is really mortgaged by the mortgagor to the second mortgagee is the equity of redemption. After such a second mortgage is executed, the equity of redemption vests both in the mortgagor and in the puisne mortgagee. That is the reason why under Order 34, rule 1, Civil P. C. , a puisne mortgagee is considered to be a necessary party to the suit filed on the prior mortgage, whereas In a suit bv a puisne mortgagee the prior mortgagee is not a necessary party. If the mortgagor and the puisne mortgagee are Impleaded in the suit filed on the prior mortgage, the whole of the equity of redemption is properly represented and the decree in such a suit would be binding upon the puisne mortgagee; but if the puisne mortgagee Is not impleaded as a party and if the decree ends in a sale his right as a puisne mortgagee to redeem the prior mortgage is not affected. Vide Murugappa v. Marudachalam, AIR 1948 mad 412. Not only the puisne mortgagee has the right to redeem the prior mortgage but also has the right to sue for sale subject of course to the first mortgage--vide Debendra Narain v. Ramtaran, (1903) ILR 30 Cal 599 (FB ). The puisne mortgagee may redeem the prior mortgage even though a suit to enforce the puisne mortgage is barred by limitation, because limitation for a suit for redemption is 30 years under Article 61 (a) of the Limitation Act, 1963, corresponding to 60 years under Article 148 of the Limitation Act, 1908, while limitation for a suit to enforce a mortgage is 12 years under Article 62 of the limitation Act of 1963 corresponding to Article 132 of the Act of 1908,

(3.) ONE of the questions that arose for consideration before the Full Bench in Mulla veetil v. Achuthan Nair, (1911) 21 Mad LJ 213, was what exactly does the auction purchaser at an execution sale In a suit filed on the prior mortgage without impleading the subsequent mortgagee acquire. After an exhaustive review of the case law, the Full Bench held that the purchaser in such a suit, whether he is the first mortgagee himself or a stranger, does not acquire the rights of the mortgagor, as on the date of the first mortgage, but only those rights that subsist in him at the date of the suit (on the date of the suit instituted on the prior mortgage, the mortgagor had a part of the right to redeem the puisne mortgagee ). The Privy Council has recognised the principle In Sukhi v. Ghulam safdar Khan, AIR 1922 PC 11 at p. 13, that the purchaser in execution of the decree obtained on the prior mortgage acquires the rights of the prior mortgagee and the equity of redemption of the mortgagor. In Abdul Gafoor v. Sagun choudhary, the same principle is reiterated.