VISWANATHA AIYAR Vs. CHIMMUKUTTI AMMA

JUDGEMENT

(1.) The predecessor of defendant 5 in this case, the jenmi of the land concerned, granted a kanom to defendants 1 and 2. They granted a sub-mortgage of that kanom to defendants 3 and 4, who assigned their right to the plaintiff. After that, on the expiry of the term of the kanom, defendant 5 sued for redemption without making the plaintiff or his assignors, defendants 3 and 4, parties to the suit, obtained a preliminary decree for redemption and settled with the kanom-dars, defendants 1 and 2, by payment out of Court. The plaintiff has brought this suit to enforce his sub-mortgage by sale of the kanom right, which had been mortgaged to his assignors. The District Munsif gave him a personal decree against his mortgagors and a decree for the sale of their possessory right in the land concerned, whatever that might be. The plaintiff appealed to the Subordinate Judge claiming a decree for sale of the kanom; but his appeal was dismissed. He then appealed to this Court, and the second appeal was dismissed by Spencer, J. The present appeal is against Spencer, J.'s decision.

(2.) I have mentioned that defendant 5 paid defendants 1 and 2 the amount fixed in his redemption decree. It has been suggested before us in the course: of the arguments by Mr. Ramakrishna Aiyar for the plaintiff that the evidence of that payment is unsatisfactory. But the payment was found by the District Munsif to have been made; the Subordinate Judge's judgment obviously proceeds on the ground that that finding is correct; Spencer, J., accepted it as correct; and I do not see how we can allow that finding of fact to be questioned at this stage. The District Munsif found that neither defendant 5 nor his predecessor ever had actual notice of the plaintiff's sub-mortgage and that finding is not now contested. It cannot be disputed that on the authorities, if a mortgagor without notice of any sub-mortgage pays off his mortgagee out of Court, the sub-mortgagee cannot after that redemption bring the right mortgaged to him to sale. For that we have Narayana Mudali V/s. Raghavammal (1907) 18 M.L.J. 462, Chinaswamy v. Venkataramakrishnayya (1916) 4 L.W. 502, Sahadev Ravji V/s. Shekh Papa Miya (1904) I.L.R. 29 B. 199 and Maung Shan Hpyu V/s. U Po Thaw (1927) I.L.R, 5 R. 749. Those were all cases in which the redemption proceeded out of Court. In this case, as I have mentioned, defendant 5 brought his suit for redemption, and it was in the course of that suit that he made his payment. Mr. Ramakrishna Aiyar has contended that that makes a vital difference in the matter. Under Rule 1 of Order 34 of the Civil P. C. the plaintiff, a sub-mortgagee, as a person interested in the mortgage-security, should have been made a party to defendant 5's suit. Mr. Rama-krishna Aiyar contends that, as he was not made a party, the payment in his absence did not discharge the mortgage to defendants 1 and 2, which is still available to the plaintiff. He has relied upon certain expressions in the judgment of their Lordships of the Privy Council in Sukhi V/s. Gulam Safdar Khan (1921) L.R. 48 I.A. 465 : I.L.R. 43 A. 469 : 42 M.L.J. 15 (P.C.). Their Lordships there quote with approval as a correct statement the following sentences from the judgment of the High Court in that case: The plaintiff is a puisne mortgagee seeking to enforce her mortgage, the prior mortgagee in his suit having failed to make her a party. It is the duty of the Court to give the plaintiff the opportunity of occupying the position which she would have occupied if she had been a party to the former suit.

(3.) Mr. Ramakrishna Aiyar would have us interpret that as meaning that we must put the plaintiff in this case into the position in which he would have been if he had been made a party to defendant 5's redemption suit and that he must now get what he would have got in that suit. But I do not think that their Lordships, in quoting those expressions, meant to lay down that, when one of the proper parties to a mortgage suit was not impleaded, the suit should be treated as if it had never been or as if the decision between the parties to the suit as it stood could be wiped out or that the hands of the clock should be put back or that necessarily the omitted party must get all that he would have got in that suit. It has been decided that, if a proper party in a mortgage suit is omitted, then his rights are not affected by that suit in the sense that he can still pursue his own remedy. That is so on general principles and is matte clear in Mulla Vittil Seethi V/s. Achuthan Nair and Chinnu Pillai V/s. Venkatasamy Chettiar (1915) I.L.R. 40 M. 77 : 30 M.L.J. 347. In this case the plaintiff, as the sub-mortgagee, had a right to sue for sale of the property mortgaged to him. If he was not made a party to defendant 5's suit, his right to bring his own suit was unaffected and could be pursued by him. But, if he brought such a suit, what would he get? All he could get would be a decree for sale of the mortgage right which was mortgaged to him and, if necessary and available, in due course a personal decree against his mortgagors. It happens that in consequence of the redemption of the land mortgaged it is of no use to the plaintiff to bring that mortgage to sale. It is gone; and therefore all that remains to him is a personal decree against his mortgagors, to which the District Munsif has added a decree for sale of their possessory right, if any.