BALU Vs. DHANAM

JUDGEMENT

(1.) THE facts of this case lie in a narrow compass.

(2.) THE subject matter of the hypotheca belonged to Dhanam. She executed a mortgage in favour of Balu Chettiar, and borrowed certain amounts. Balu Chettiar assigned the mortgage in favour of one Kadappa Chettiar. THE property was at that time, in the occupation of Sambandamurthi. In the meanwhile, the owner of the property Dhanam viz., the mortgagor filed as suit in O.S.No.- 533 of 1975 for redemption of the mortgage, wherein a preliminary decree was passed on 16.11.1976. She deposited a sum of Rs. 212.75 into Court pursuant to the preliminary decree. After passing of the preliminary decree, she sold the property in favour of one Ramaswamy, who is the 2nd respondent herein. But inspite of her having sold the property in favour of Ramaswamy, she pursued the matter by filing application in I.A.No. 99 of 1979 for passing of final decree pursuant to the preliminary decree obtained by her and a final decree was passed. At that time, Ramaswamy filed E.P.No. 430 of 1980 straight away. THE right of Ramasamy, the subsequent purchaser to file the E.P. was questioned by stating that he was not a party to either the original suit or to the final decree proceedings and there is no decree in his favour. THE E.P. was dismissed and CRP. No. 3641 of 1981 was filed against the same. While dismissing the CRP., it appears that the High Court had observed that it was open to the subsequent purchaser to proceed in accordance with law after getting himself impleaded in the final decree proceedings. Pursuant to the order of the High Court in the CRP., Ramaswamy the subsequent purchaser filed an application in IA.No. 981 of 1984 impleading Dhanam as well as Balu Chettiar and Sambandamurthi and Kadappa Chettiar as respondent. THE said application was contested by the respondents. But, over-ruling the objections, the District Munsif ordered Ramaswamy to be impleaded in the final decree proceedings. It was after that, Ramaswamy filed an application in I.A.No. 594 of 1986 for passing of final decree, impleading Balu Chettiar, Sambandamurthi and Kadappa Chettiar as the respondents in the said application. To the said application, the very same objections were raised by the respondents, once again. But the District Munsif, again overruled those objections and allowed the application and passed a final decree. Aggrieved by the said decision, the respondents viz., Balu and Sambandamurthy preferred an appeal to the District Court in A.S.No. 92 of 1987. THE District Judge, by his Order dated 21.8.1987, confirmed the order of the District Munsif, dismiss the appeal, and consequently, this second appeal has been preferred.

(3.) ADMITTEDLY, here the proceeding which is in the nature of final decree proceeding has been taken by the assignee decree holder, who claims from the plaintiff, the decree holder. The Supreme Court has held in the decision reported in C. Subbarayudu v. Brahmanandam, 1959 SCA 129 that this Section was introduced in the Code of 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment and that, being a beneficent provision, it should be construed liberally and so as to advance justice, and not in a restricted or technical sense. Therefore, one has to give effect to the object behind enacting Section 146 of the Code. That is what the courts below have done by empowering the assignee decree holder to come on record as a part to the final decree proceeding and passed a final decree consequently. Therefore, I am satisfied that there is no merit in this appeal and the same is liable to be dismissed.