PINGALI VENKATARAMANA REDDI BY HIS AUTHORISED AGENT BRAHMANDA NARASIMHA RAU Vs. KOTIGARI MRANGIAH CHETTI

JUDGEMENT

(1.) The facts are set out in the opinion of my learned brother and I shall not repeat them. I entirely agree with my learned brother on the question of Us pendens and that we should follow the decision of our own court in Veerankutty Koundan V/s. Ramasami Asari (1915) 32 I.C. 431 in preference to the decision in Tilakdhari Singh V/s. Gourtiarain (1920) 5 P.L.J. 715.

(2.) The question which remains for consideration is whether the 25 defendant, the appellant, is entitled to stand in the shoes of the decree-holder in O.S. No. 6 of 1890 (whom I shall call the prior mortgagee) so that he (the appellant) can Set up those rights as a shield against the plaintiff's claim to proceed against the sum of Rs. 3,000 which now represents item 2 of the mortgaged properties, the said item 2 having been mortgaged both in that prior mortgage and in the plaintiff's subsequent mortgage sued on.

(3.) So far as the ownership right in item 2 (the Karvetnagar forest) now represented by the Rs. 3000 is concerned, I think that as the suit O. S. No. 6 of 1890 was properly constituted without notice of the plaintiff's subsequent mortgage, Revanur Subramaniya Aiyar obtained by his purchase in execution of his decree in the said suit complete title to the ownership of that property. The pLalntfff, the subsequent mortgagee, not having been a party to the suit of 1890 is, however legally entitled to bring the present suit for sale on his mortgage notwithstanding that the property had been sold away in the former suit and even though his havitfg been not irnpleaded in the former suit was not due to any fault on the part of the prior mortgagee.