RAMA AIYAR Vs. ALPALANIAPPA CHETTY

JUDGEMENT

(1.) The question which we have to decide in this appeal is whether it is open to the appellant to impeach the validity of the mortgage on which the suit is brought. The question arises in this way. The suit is by the mortgagee. The 1 defendant is the mortgagor. Defendants Nos. 23 and 24 held a money-decree against the mortgagor, and they attached the mortgaged property. The mortgagee put in a claim under Section 278 of the Civil Procedure Code. The mortgagor was not a party to those proceedings. On the hearing of that claim the mortgage was attacked by defendants Nos. 23 and 24 on two grounds. It was attacked on the ground that it was invalid because the provisions of Section 257-A of the Code had not been complied with, and on the ground that it was a sham. Notwithstanding that the mortgage was impeached on the grounds I have stated, the claim of the mortgagee was upheld. Defendants Nos. 23 and 24 became the purchasers at the court sale held under the order made in the proceedings under Section 278; they afterwards assigned their rights to the 25 defendant who is the appellant before us. Now the present suit is by the mortgagee, and he seeks to recover the money due to him from the mortgagor by sale of the mortgaged property. The 25 defendant seeks to impeach the validity of the mortgage.

(2.) One of the issues raised in the suit was whether the mortgage was bad because the provisions of Section 257-A of the code had not been complied with. The court of first instance held it was. The matter came before this Court on appeal, and with regard to this question this Court took a different view from that of the court of first instance and held that Section 283 barred the rights of defendants Nos. 23, 24 and 25 to raise the question of the validity of the mortgage with reference to the provisions of Section 257-A, because they failed to bring a suit within one year from the order made in the claim proceedings. They held against the 23 and 24 defendants on the contention which they raised that they were entitled on the ground of minority to escape the operation of this provision of the law of limitation.

(3.) Now it is conceded by Mr. Ananthakrishnier, who argued this appeal on behalf of the appellant, that the grounds of the decision of this court, to which I have just referred, are equally applicable to the question which we have to consider here, that is to say, the question whether the appellant is entitled to impeach the mortgage with reference to the provisions of Section 257-A, and on the ground that it is a sham. The parties against whom the order referred to in Section 283 of the Civil P. C. was made were this judgment- creditors of the mortgagor (defendants Nos. 23 and 24), and the 25 defendant derived his title by assignment from them. The contention on behalf of the appellant was that, although the order was made against the parties from whom the 25 defendant derived his title inasmuch as these parties were the purchasers at court auction, the appellant had become relieved of the disability imposed by the provisions of Section 283 of the Civil Procedure Code and. clothed himself with all the rights of the judgment-debtor. One of these rights was the right to say : "As I was not a party to the claim proceedings, I am not bound thereby."