DUNNA CHINA RAMAYYA Vs. VEJJU RAMAMOHANARAO

JUDGEMENT

(1.) This second appeal is on reference before us and raises a point of limitation on which it is said the High Courts in India are divided in their views.

(2.) For a proper appreciation of this point and the other points which incidentally arise for consideration, it is necessary to state essential facts of the case. Defendants 11 to 13 are brothers. Defendants 14 to 16 are sons of defendant and defendants 17 to 18 are sons of defendant No. 1 2. Defendants 11 and 12 for themselves and as guardian of their minor brother defendant No. 13 and also of their sons borrowed from the plaintiff-appellant a sum of Rs. 1500.00 on 6-8-1934 executing a simple mortgage in relation to seven items of property including plaint schedule items 1, 2 and 3 with which we are concerned in this appeal. Item 1 property originally belonged to one Sista Subramanyam. It was purchased by the 12th defendant. The said defendant for himself and as guardian of his minor sons had earlier mortgaged items 1 and 3 and another property to one Vejju Mahalakshmi under EX. B-3 for a sum of Rs. 900.00 on or about 13-1-1934. Then on 10-6-1934 the same defendants executed an agreement of sale for item 1 in favour of one Berika Krishnarao for a sum of Rs. 700.00 under Ex. B-5, This amount was stated to have been obtained for part payment of mortgage debt and it was paid to Mahalakshmi on or about 10-7-1934. Shortly after the suit mortgage, which as already stated, took place on 6-8-1934, the 12th defendant and his son sold item 1 pursuant to the agreement of sale to B. Krishnarao on 19-11-1936 under a sale deed (the original of Ex. B-4) and put him in possession for some time and sold the said property to Venkadaru Sarvayya on 30-6-1937 (Ex. B-6) who in turn sold the same to Vejju Subbarao, father of defendants 1 to 5, for a sum of Rs. 1000.00 on 7-5-1943 under s registered sale deed Ex. B-7 and put him in possession thereof. In family partition this item fell to the share of defendants 1,2 and 4 to 6 and they are in possession of the property. During the period Sarvayya was in possession, plaintiff brought an action for recovery of his mortgage amount on 5-4-1940 but he did not implead him as a party to the suit even though he was fully aware of the fact that he was in possession of the property as a purchaser of equity of redemption of item 1. In fact before he brought the suit he had lodged a criminal complaint in 1939 against the mortgagors for cheating him. He had even examined Sarvayya in that case as a witness. At any rate, it is not at all disputed that he was not aware of the alienations before he brought his action O. S. No. 170/1940. Even in relation to items 2 and 3, he had come to know long prior to the date of the suit and before the date of the criminal complaint, that the mortgagors had no title even at the time of mortgage in relation thereto and the said items were in possession of defendants 7 to 10. He did not implead the said defendants in the said action. Of course in an action on mortgage defendants 7 to 10 were not necessary parties under O. 34 R. 1 C. P. C. The suit was decreed against the mortgaged and in execution thereof only four items of mortgaged property were brought to sale. The plaintiff became the auction purchaser of items 1 to 3. He purchased item 1 for Rs. 1250.00 and items 2 and 3 for Rs. 850.00 He applied for delivery of possession of item 1 after the sale was confirmed. At that time Vejju Subbarao, as transferee from Sarvayya was in possession of the said property. On his obstruction, the auction purchaser plaintiff filed E. A. No. 40 of 1945 which was dismissed on the ground that the obstructor was not a party to the suit. Then he filed a suit O. S. No, 252/1948 under Or. 21, R. 103 C. P. C. to establish his right to the present possession of the property by getting the order set aside. The suit was dismissed. He went in appeal but with little success. his second appeal 258 of 1955 was also dismissed by the High Court on 29-1-1958. Therein the learned Judge having held that the order refusing amendment of the plaint as prayed for was justified remarked thus: "Even the present suit must have been filed only to enforce the mortgage, if of course his right under the mortgage is subsisting. he can do that even now subject of course to the same qualification." These remarks appear to have prompted the plaintiff to bring the present suit on 19-3-1958.

(3.) It would thus appear from the above facts that in relation to item 1 the allegation in favour of Barika Krishnarao though effected subsequent to the mortgage was in pursuance of an agreement of sale anterior to the mortgage itself, and the mortgagee in spite of knowledge did not implead the alienees in his action on mortgage in compliance with O. 34, R. 1, C. P. C. Further his action for possession as against the alienees brought subsequently under O. 21, R. 103 C. P. C. had failed conclusively as against him. It is only thereafter and in the circumstances mentioned above he has brought the present suit. Similarly after the bid in relation to items, 2 and 3 was knocked down in his favour, the plaintiff looked into the revenue accounts and was satisfied that the said items stood in the name of Kanchugummam Venkayamma and that she was paying taxes, etc. he them filed E. A. No. 328/1946 under O. 21, R. 91 C. P. C. for setting aside the sale. But his petition was dismissed and that decision was confirmed in appeal in C. M. A. No. 26/;1948 by the Subordinate Judge and also by the High Court in C. R. P. No. 1014/.1949 on 20-3-1952. Six years thereafter the present suit has been brought. The specific prayers contained therein are: (1) that an opportunity may now be given to defendants 1 to 6 and they may be called upon to redeem item 1 of the plaint schedule from the mortgage liability and in default possession of the said item may be delivered to the plaintiff; (2) that the title of defendants 11 to 18 to items 2 and 3 may be determined and the plaintiff be put in possession thereof and (3) that if that cannot be done a decree may be granted against the mortgagors for the total sum representing the amount for which the plaintiff purchased the said items in the auction together with Interest thereon from the date of purchase and also the costs that he had to pay to defendants 1 to 6 in O. S. No. 352/1948.