LAWS(PVC)-1940-9-16

K M SR K LANKARAM Vs. OKSSUNDARAGOPALA AIYAR

Decided On September 03, 1940
K M SR K LANKARAM Appellant
V/S
OKSSUNDARAGOPALA AIYAR Respondents

JUDGEMENT

(1.) This appeal arises out of a suit instituted in the Court of the Subardinate Judge at Madura on the basis of a mortgage deed (Ex. A) executed by or on behalf of defendants 1 to 4 on the 29 July, 1921, in the plaintiffs favour.

(2.) The only points for decision in this appeal relate to the enforceability of this mortgage deed and to the lien claimed by the appellant, who was the fifth defendant in the suit, on account of a payment made by his father in satisfaction of a money decree passed in O.S. No. 135 of 1920 against the defendants 1 to 4.

(3.) The facts which have led to this litigation may be briefly stated. A decree for a sum of Rs. 14,130-11-2 was passed against the defendants 1 to 4 on the 11th November, 1920, in O.S. No. 135 of 1920. The decree-holder made an application for execution and attached various items of property including the one (item No. 3 in those proceedings and the first item in the present suit) with which we are concerned in this appeal. The attachment was made on the 13 December, 1920. Daring the continuance of this attachment, seven items of property including the first item, were mortgaged by the judgment-debtors with the plaintiffs for a sum of Rs. 9,000 on the 29 July, 4921 (Ex. A). Out of this money, a sum of Rs. 5,000 was deposited by the Judgment-debtors on the 1 August, 1920, towards the decree passed in O.S. No. 135 of 1920) and an application (Ex. V) was made by them at the same time for the grant of a month's time for paying the balance of the decretal amount by alienating the properties under attachment. This application was accepted and in accordance with his undertaking contained if the mortgage deed Ex. A the plaintiffs deposited two more sums of Rs. 1,050 and Rs. 1,450 on the two following days (that is, on the 2nd and 3 August, 1921). The lodgment schedules on the record show that all these three items of Rs. 7,500 were deposited in Court towards the amount of the decree passed in Q.S. No. 135 of 1920. The balance was partly deducted by the plaintiffs towards their own dues and partly paid by them on behalf or the judgment-debtors. The decree was not, wholly satisfied and the Court, after the lapse of the time granted by it in pursuance of Ex. V proceeded to execute the decree. The proclamation of sale is not in evidence and we are not, for that reason, in a position to know the amount for which the sale was ordered. But having regard to the fact that Rs. 7,500 were paid towards the decree passed in O.S. No. 135 of 1920, we must presume that this sum must have been duly credited in partial satisfaction of that decree. Anyhow the execution took its course and the third item of that suit was sold in auction on the 5 October, 1921, for a sum exceeding Rs. 16,000. Before the sale was confirmed, the judgment-debtors applied to the Court on the 25 November, 1921, for permission under Order 21, Rule 83, Civil Procedure Code, to sell the third item privately and also to alienate three more properties (items 4 to 6 - Ex. IV) in the same manner. This was granted on the same day but the Court imposed a condition, as required by that rule on the judgment-debtors that the whole of the sale proceeds or other amounts raised by creating an incumbrance should be deposited by them in Court. A certificate was granted under the provisions of the same Rule 83(2) and the judgment-debtors executed a sale deed of the third item of property on the very next day in favour of Kuppuswami, the father of defendants 5 and 6 for a sum of Rs. 22,500 (Ex. I). Out of this amount a sum of Rs. 17,200 had been deposited by Kuppuswami in Court along with the judgment- debtor's application, Ex. IV, on the 25 November, 1921, that is a day before the sale Heed was executed and the balance of Rs. 5,300 was deposited on the 10th December, 1921. Ex. III which is a copy of the lodgment schedule, however shows that this latter sum of Rs. 5,309 was paid towards the decree passed against the same judgment-debtors in another suit (O.S. No. 40 of 1921). Since the third item of property which the fifth defendant's father had purchased under Ex. I had been auctioned in execution of the decree in Q.S. No. 135 of 1920, it may be fairly presumed that the sum of Rs. 17,200 was deposited by him in the execution of that decree. On payment of this money into Court, the decree in O.S. No. 135 of 1920 was completely satisfied, the sale by the Court was set aside and the attachment made on the l3 December, 1920, deemed to be withdrawn. The sale in Kuppuswami's favour was subsequently confirmed by the Court under the provision of Order 21, Rule 83, Civil Procedure Code. It may be mentioned here that on the same date on which the sale deed in Kuppuswami's favour was executed that is on the 26 November, 1921, the judgment-debtors executed another agreement Ex. H in Kuppuswami's favour under which they agreed to mortgage certain other properties with him in consideration of his paying, a few other debts including the one which they had taken from the plaintiffs under the mortgage deed Ex. A. The original of this document has not been produced but the lower Court has found that it must have been in the possession of the fifth defendant and this finding has not been challenged before us. No money was paid in pursuance of Ex. H to the plaintiffs and they brought the present suit on the basis of their mortgage deed Ex. A This was resisted by the appellant and his sister (the fifth and sixth defendants in the suit) on several grounds. The validity of the mortgage deed Ex. A was first of all questioned for the reason that it was executed by the judgment-debtors during the pendency of the attachment. It was contended that although the properties attached in this execution were not sold through Court, yet the private sale effected by the judgment-debtors after a certificate had been granted by the Court under Order 21, Rule 83(2) and after it was duly confirmed under the provisions of that section must be regarded to be a substitute for a sale through Court and the attachment effected before the mortgage Ex. A must enure to the benefit of the person who purchased the property with the sanction of the Court. It was conceded by Mr. Sitarama Rao that an alienation of a property effected by a judgment-debtor even after it was attached is not void against the whole world; but it would be so, he said, against any person who dealt with the property under the orders of the Court, meaning thereby that as the sale of the third item of property to, his client was made by reason of the attachment under what he calls to be the Court's order, it would be void as. against him.