S M S SUBRAMANIAN CHETTIAR (DEAD) Vs. SINNAMMAL

JUDGEMENT

(1.) This Letters Patent Appeal raised two important questions of law, one turning on the construction to be placed upon Order 41, Rule 33, Civil Procedure Code, and the other on Section 91 of the Transfer of Property Act read with Order 34, Rule 1, Civil Procedure Code.

(2.) The first question has been answered in favour of the respondents and against the appellant by a Full Bench of this Court at an earlier stage of this Letters Patent Appeal.

(3.) The only other question that remains for decision is whether the plaintiff, on the facts stated in the Order of Reference, is entitled to redeem the 1 defendant's mortgage. The plaintiff was a money decree-holder against the judgment-debtor, the mortgagor, and in execution of his money-decree he attached the mortgaged properties. Pending the attachment, the 1 defendant, the mortgagee, filed a suit to recover the money due upon his mortgage but he failed to make the plaintiff who was then the attaching decree-holder a party to his suit on the mortgage. In course of time the plaintiff became purchaser in Court-auction in execution of his money-decree and obtained possession. The mortgagee, the plaintiff in the other suit, also became purchaser in execution of the decree passed on the foot of his mortgage. The question that arises in the present suit is whether the plaintiff, the attaching decree-holder who subsequently became also the auction-purchaser in execution of the money-decree, has got the right to redeem the mortgage on the ground that Section 91(f) of the Transfer of Property Act gives him such a right to redeem since he was not made a party to the mortgage suit.