KADIR MOHIDEEN MARAKKAYAR Vs. MUTHUKRISHNA AIYAR

JUDGEMENT

(1.) Plaintiff, as the assignee of a mortgage executed, by 1 defendant's father Kadir Lavvai, brought O.S. No. 540 of 1894 against Kadir Lavvai to enforce the mortgage by-sale. During the pendency of the suit and before the passing of the decree Kadir Lavvai died and the name of his son, the 1 defendant, was on plaintiff's application entered on the record as legal representative in place of the deceased defendant under Section 368 of the Civil Procedure Code. Subsequently on the 20 December 1899, a decree was passed ex parte against the 1 defendant as legal representative of the deceased defendant directing the sale of the mortgaged property. Plaintiff purchased the property at the sale held on the 7 September 1897, in execution of the decree and the sale was confirmed on the 8 November 1897. After obtaining the usual certificate of sale which purported to convey to the plaintiff the whole of the mortgaged property, as it must be assumed, as that of the deceased defendant, the mortgagor, he obtained delivery of the same under Section 318 of the Civil Procedure Code on the 18 February 1898. He was subsequently dispossessed by defendants 2 to 5 at the instigation, as is alleged, of the 1 defendant. Hence this suit which was instituted on the 22 July, 1898.

(2.) It is admitted that Kadir Lavvai left three sons and two daughters, of whom 1 defendant was the eldest, and that none but the 1 defendant were joined as the legal representatives of the deceased Kadir Lavvai in O.S. No. 540. It is found by both the courts that subsequent to the decree in the above suit, Mohamed Moideen, the 2nd son of Kadir Lavvai, was assessed to income-tax, and that for arrears of tax due by him, the mortgaged property was sold under the Revenue Recovery Act and purchased by the 2nd defendant on the 15 July 1896. The decree in O.S. No. 540 is not impeached as having been obtained by fraud or collusion. Both the courts below have decreed the plaintiff's claim.

(3.) Second defendant appeals against the decree, and the only points ruged before us in support of the appeal are that the decree in O.S. 540 can at the most only bind 1 defendant's share in the mortgaged property, and that it will not affect the shares of the other heirs of Kadir Lavvai as they were not made parties to it, and that the sale of the mortgaged property under the Revenue Recovery Act for realising arrears of income-tax will vest the same in the 2nd defendant, the purchaser, free of the mortgage encumbrance,, at any rate so far as the share of Mohamed Moideen is concerned.