MT FATIMA BEGAM Vs. BANSIDHAR

JUDGEMENT

(1.) This second appeal has arisen out of a suit brought by the plaintiff-respondent for recovery of possession of certain properties, specified at the foot of the plaint. The first Court dismissed the suit but the lower appellate Court decreed the plaintiff's claim in full. Some of the defendants have appealed to this Court.

(2.) The facts of the case are no longer in controversy. The property in dispute belonged to one Chiranji and Mt. Dharman, who executed a deed of simple mortgage in favour of the plaintiff's predecessor-in-interest (hereinafter referred to as plaintiff). The defendant-appellants predecessor-in-title (hereinafter referred to as defendant) held a simple money-decree against the aforesaid mortgagors and had the mortgaged property now in suit attached in execution of their decree shortly before the mortgagee instituted his suit for sale on foot of his mortgage. The sale in execution of the simple money-decree in favour of the defendants was not made till after the institution of such suit. The holder of the simple money- decree himself purchased at the auction and obtained possession of the property now in dispute. Subsequently a decree for sale was passed in favour of the plaintiff. The mortgaged property (the property now in dispute) was sold and purchased by the mortgagee himself who took out formal delivery of possession but was opposed in the Revenue Court on applying for mutation of names by the defendant who had purchased it in execution of a simple money-decree. Mutation of names was refused to the plaintiff. Accordingly he brought the suit which has given rise to this appeal for recovery of possession.

(3.) The only defence which it is necessary to mention for the purposes of this appeal was that the plaintiff is not entitled in any case, to an unconditional decree that the defendant-appellants are entitled to redeem and that only on their failure to exercise such right of redemption should the plaintiff be given a decree for possession. The learned District Judge overruled this defence. The only question argued in second appeal is that the defendant being an attaching creditor had a right to redeem the mortgage in favour of the plaintiff, that the defendant should have been made a party to the plaintiff's suit on foot of the mortgage and that he not having been impleaded and afforded an opportunity to exercise his right of redemption is entitled to redeem now. Subject to the defendant's right of redemption, the plaintiff's right to possession has not been disputed by the learned Counsel for the appellant. The auction sale at which the defendant purchased the property in dispute in execution of his simple money-decree took place during the pendency of the plaintiff's suit on foot of his mortgage. Thus the defendant's right under the auction sale was affected by the rule of lis pendens and was therefore subject to the plaintiff's right under the decree for sale. In this view the plaintiff's right to possession subject to the defendant's right to re- deem, if he has any cannot be disputed.