BASWANNEWA MALLESHAPPA APPAJI Vs. DODGOWDA BASANGOWDA DYAWANGOWDA

JUDGEMENT

(1.) THIS second appeal has arisen in this way: In October, 1930, defendant No.2 and the late husband of defendant No.3 mortgaged the house and land in suit for Rs. 1,000. On November 21, 1930, the house was attached by defendant No.4 in execution of a money decree against defendant No.3's husband. In May, 1932, the house was sold by the Court and was bought by defendant No.4, and in due course that order was confirmed in 1935 by the High Court in second appeal. But in the meantime defendant No.1, the original mortgagee, sold his mortgagee's rights to the plaintiff, and in June, 1935, defendants Nos. 2 and 3 sold both the house and the land to the present plaintiff for the amount of the mortgage debt.

(2.) IN 1933 the plaintiff brought a suit to restrain defendant No.4 from taking possession of the property under his Court purchase. This was dismissed because it was held that, defendant No.4 having bought the equity of redemption of the house in execution proceedings, his rights could not be affected by the plaintiff's purchase of the house. The plaintiff then brought the present suit on her mortgage. It was contended by defendant No.4 that the transaction by which the plaintiff bought from defendants Nos. 2 and 3 extinguished the mortgage so far as the house was concerned, and any suit with respect to the house based upon the plaintiff's rights in the mortgage could not lie. The trial Court refused to accept that contention, holding that the consideration as regards the house had failed and the sale accordingly was ineffective as regards the house, with the result that the plaintiff continued to hold the mortgage rights over the house. That decision was reversed in appeal, the learned District Judge holding that the mortgage was extinguished as a whole,; and that it was not open to the plaintiff to rely upon Section 101 of the Transfer of Property Act in order to recover the mortgage amount of the house from defendant No.4. The plaintiff accordingly comes in second appeal.

(3.) THAT means that the mortgage debt was extinguished, and the ordinary result of extinguishing a mortgage debt is that the mortgage itself is extinguished. But on behalf of the plaintiff Mr. Murdeshwar relies on Section 101 of the Transfer of Property Act as keeping the mortgage alive as between the plaintiff and defendant No.4. Section 101 of the Transfer of Property Act reads as follows: Any mortgagee of, or person having a charge upon, immoveable property, or any transferee from such mortgagee or charge-holder, may purchase or otherwise acquire the rights in the property of the mortgagor or owner, as the case may be, without thereby causing the mortgage or charge to be merged as between himself and any subsequent mortgagee of, or person having a subsequent charge upon, the same property; and no such subsequent mortgagee or charge-holder shall be entitled to foreclose or sell such property without redeeming the prior mortgage or charge, or otherwise than subject thereto.