ALAGAMMAL Vs. SADASIVA PADAYACHI

JUDGEMENT

(1.) These miscellaneous appeals arise out of two orders of remand passed by the learned Subordinate Judge of Trichinopoly in two connected appeals on his file. When these appeals came on for hearing the learned advocate for the respondents took the preliminary objection that the appeals did not lie. In order to appreciate the nature of the suits and of the preliminary objection raised before us. it is necessary to state a few facts. One Arumugam was owner of the suit properties. On the 5 March, 1912, he hypothecated these properties in favour of the plaintiff's husband.. The plaintiff filed O.S. No. 686 of 1922 on the file of the District Munsif's Court of Ariyalur after her husband's death to recover the money due on the mortgage of the 5 March, 1912. To that suit she made Arumugam, the mortgagor, as defendant. After obtaining the usual mortgage decree, she had the properties sold in execution of the decree and herself became the purchaser, and the sale certificate Ex. A was issued in her name on the 15 March, 1924, On 10 May, 1924, she Sought to obtain delivery of the properties in execution of the sale certificate. Then she was obstructed by the defendants who claimed to have purchased these properties from the Government under circumstances which would be described later on. Being obstructed in thus obtaining possession she filed these two suits, one against the defendant who were in possession of some of the properties included in the sale certificate, but which were claimed by them as having been purchased from the Government, the defendants in the other suit being in possession of the other property covered by the sale certificate which they had purchased from the Government. The defendants pleaded that the Government ought to have been made party-defendant in O.S. No. 685 of 1922, and that as they derived their title through the Government they would be entitled to redeem the plaintiff's mortgage. The learned District Munsif raised issue No. 3 as follows: "Is the plaintiff's mortgage redeemable as contended?" The learned District Munsif who tried the suits was of opinion that the possession of the Government was only that of an attaching, creditor and consequently the Government was not entitled to be made party to the suit brought on the mortgage, and in any event could not claim any right to redeem plaintiff's mortgage at present. He accordingly decreed the plaintiff's suit for possession unconditionally. The defendants preferred appeals to the Lower Appellate Court, and the learned Subordinate Judge of Trichinopoly came to the conclusion that the defendants were entitled to redeem the plaintiff's mortgage as they had not been made parties to the prior suit O.S. No. 685 of 1922; he modified the decree of the Trial Court and declared that the defendants were entitled to redeem the plaintiff, and to find out the exact amount payable on redemption, he remanded the suits to the Trial Court for disposal according to law. It is against the order of remand passed in each of these two connected appeals that the plaintiff has preferred these two miscellaneous appeals.

(2.) The learned advocate for the respondents took the preliminary objection that in these circumstances these miscellaneous appeals do not lie. The appeals have been preferred under Order 43, Rule 1, Clause (u) on the footing that the orders of remand were passed by the Lower Appellate Court under Order 41, Rule 23, Civil Procedure Code. The learned advocate argued that it should not be taken that the Trial Court decided any preliminary issue nor could the Appellate Court be said to have reversed the finding of the Trial Court on such a preliminary issue. He accordingly contended that the present must be taken to be a case where the Lower Appellate Court remanded these suits under its inherent jurisdiction, and he argued that, having regard to the decisions which hold that no appeal would lie against orders of remand passed under the inherent jurisdiction of Courts, these appeals are not maintainable. We are unable to agree with that contention. As we read the pleadings and also the proceeding's in the Trial Court, we understand that the 3 issue was intended to raise the question whether the plaintiff was entitled to an unconditional decree for possession, and also whether the defendants would be entitled to redeem, in which case the plaintiff would be entitled to possession only if the defendants failed to redeem. We take that to be the real meaning and significance of the third issue framed in the suit. In this view, the Lower Appellate Court was entitled to come to its own finding upon that preliminary issue, and as the Lower Appellate Court held that the defendants would be entitled to redeem, we think that on its reversing the finding of the Trial Court on this preliminary issue it was entitled to remand the suit for disposal on the other points under Order 41, Rule 23, Civil Procedure Code. We are supported in this view by the decision of the Full Bench in Raman Nayar V/s. Krishnan Namibudripad (1922) I.L.R. 45 M. 900 : 43 M.L.J. 354 (F.B.). We accordingly overrule the preliminary objection.

(3.) Coming to the merits, the learned advocate for the appellant argued that the present is the case of an attaching decree-holder not having been made a party to the prior suit upon the mortgage.. He drew our attention to the recent decision of a Full Bench of this Court in Subramaniam Chettiar V/s. Sinnammal (1930) I.L.R. 53 M. 881 : 59 M.L.J. 634 (F.B.) where the Full Bench held that the mere circumstance that an attaching decree-holder was not made a party to a suit upon a mortgage is not a ground for compelling the purchaser of the properties in execution of the mortgage decree to be redeemed by the attaching decree-holder. We may state that the learned Government Pleader who appeared for the respondents did not, having regard to the decision of the Full Bench, contest that proposition of law. The ground of decision by the District Munsif was that the position of the defendant was that of an attaching decree-holder merely. In paragraph 13 this is what the learned District Munsif said; All these circumstances go to show that the interest of the Government was only that of an attaching creditor and that the property did not vest in the Government.