AHAMOD KUTTI Vs. RAMAN NAMBUDRI

JUDGEMENT

(1.) WE are clearly of opinion that when in execution of a money-decree immoveable property of a judgment-debtor, in which, his real interest is only that of a mortgagee is attached and brought to sale, the auction purchaser cannot be regarded as a purchaser from the mortgagee within the meaning of Art. 134 of the second schedule of the Limitation Act, even though the property was sold as the property of the judgment-debtor without any limitation of his interest therein. Art. 134 is, in our opinion, intended solely to apply to cases in which the mortgagee disposes of the property voluntarily. But in the case of an involuntary sale in execution of a decree, the purchaser cannot be regarded as a purchaser from the judgment- debtor. The decision in Muthu V/s. Kumbalinga I.L.R. 12 M. 316, proceeds, we think, on the erroneous assumption that the court in selling the judgment-debtor's property in which his interest is that of a mortgagee for the discharge of the debt due by him under the decree is exercising the power of sale which the judgment debtor, qua mortgagee, possesses. Assuming he has such power of sale, the court may be regarded as exercising that power in a suit which the mortgagee may bring against the mortgagor for the recovery of the mortgage debt. Such power of sale cannot be exercised for the benefit of the mortgagee to enable him to discharge a debt due by him to a third party. [The case again coming on before the Division Bench the appeal was dismissed with costs.]