GUNNIAH VENCATACHALAPATHY AIYAR Vs. PERUMAL IYER

JUDGEMENT

(1.) The defendants Nos. 1 to 3 in this suit were the usufructuary mortgagees of certain properties. The first defendant, who was entitled to one-third share of that right, mortgaged his right to one Ponnaiyen and Ponnaiyen mortgaged his right to the plaintiff.

(2.) The plaintiff brought a suit on his mortgage and made Ponnniyen and Ponnaiyen s mortgagor, the first defendants, as well as the second and third defendants, parties to the suit. Certain other persons, to whom it is unnecessary to refer, were also made parties, and a decree was passed in his favour. The construction of this decree is in question in this suit. The plaintiff contends that not only Ponnaiyen s mortgage-right but the 1st defendant s 1/3rd interest also in the property was directed to be sold by the decree. The defendants contend, on the other hand, that only Ponniyen s right was directed to be sold. After the decree, an order for sale was passed. It is not disputed that this order directed the rights both of Ponniyen and of the first defendant to be sold. Nor is it disputed that they were, as a matter of fact, brought to sale, and that the plaintiff obtained such delivery as a purchaser of one-third share is entitled to get according to the provisions of the Civil Procedure Code.

(3.) The present suit is instituted for partition of the one-third share of the first defendant and recovery of that share. The first defendant did not appear to contest the suit. His co- parceners, the defendants Nos. 2 and 3, contend that the plaintiff is not entitled to partition because the decree in the plaintiff s favour was really only for sale of Ponniyen s right. Exhibit III is the decree. It directed the mortgaged property to be sold in case of default. The mortgaged property is described as one-third share of Perumal Ayyer in certain land, and it is stated that Ponniyen s right was mortgaged to one Devendiayen for Rs. 75, and that it was subsequently mortgaged to the plaintiff.