MR RAMAKRISHNA MUDALI Vs. OFFICIAL ASSIGNEE OF MADRAS, AS SUCH THE LEGAL REPRESENTATIVES OF SDAIVASIGAMANI CHETTY AN INSOLVENT SINCE DECEASED

JUDGEMENT

(1.) The plaintiff in this case in 1904 executed a mortgage in favour of the Mylapore Benefit Fund to secure a loan of Rs. 1,500. The mortgage conferred a power upon the mortgagee to sell the property on failure by the mortgagor to carry out the terms as to repayment and so forth. In 1910 the Fund was pressing for repayment and the plaintiff was not able to repay. Thereupon the Fund announced its intention of selling the property. Just before the sale the plaintiff was enabled to produce one Daivasigamani Chetty who stepped into the breach, paid off the Fund and took over the security. Daivasikhamani Chetty, further more, made a new advance of I think Rs. 800 over the original consideration of Rs. 1,500 to the plaintiff and secured that by a further equitable mortgage by deposit of title-deeds of the same property that was covered by the original mortgage to the Mylapore Fund. Daivasikhamani Chetty fared no better than the Fund, because he, in his turn, could get no repayment. So he sub- mortgaged the property to the 2nd defendant in this case who ultimately, purporting to act in the exercise of the power of sale conferred under the documents, sold it to the present 4th defendant. The plaintiff now brings this suit for redemption of the property and that suit has been dismissed by the learned judge in the Court below. Hence the appeal to us.

(2.) On behalf of the plaintiff several points have been raised with the most important of which I will deal very shortly. The first argument is based upon Section 52 of the Transfer of Property Act and was this, that, as the plaintiff had started this suit for redemption before the sale to the 4 defendant the sale fell under the doctrine of lis pendens and, by virtue of the provisions of Section 52 of the Act, no rights could be conferred under it. It has been held in a series of cases in the Bombay High Court that the doctrine embodied in Section 52 of the Transfer of Property Act has no application whatever to a mortgagor who has given under that mortgage an express power of sale and that he cannot, by starting a suit perhaps a perfectly hopeless suit for redemption, derogate from that which he has in express terms conferred upon the mortgagee by the instrument namely, the power of sale. It appears to us that that is the only logical result that can be arrived at and we agree with the view of the Bombay High Court that to hold otherwise would simply be to tear up the instrument which contains the contract agreed upon between the parties.

(3.) The next argument that was put forward was that by the assignment the power of sale in the mortgage was not conveyed and authorities were cited to the effect that a mere assignment of the mortgage does not inevitably carry with it the power of sale arising from certain eventualities, It is sufficient to say that having examined the words of the assignment here we are quite clear that they are not only wide enough to convey the power of sale but were expressly designed to do so.