MADHURAKAVI AYYANGAR Vs. CHINNASAMI CHETTI

JUDGEMENT

(1.) These two matters arise out of the execution of an ancient mortgage decree passed on a mortgage of 1913. The preliminary decree was passed in 1918 and the final decree in 1919. The present appellant and petitioner claims under the seventh defendant in the mortgage suit. The seventh defendant was a puisne mortgagee who subsequently purchased part of the property in discharge of his own mortgage. In 1929, a portion of the mortgaged property was sold in execution of the decree. In 1932, after the present first respondent had been recognised as an assignee decree-holder, the second lot was proclaimed for sale. Thereafter the seventh defendant put forward an uncertified adjustment and claimed that the decree was satisfied except for a small amount. This application was eventually withdrawn in 1936. In April, 1937, the seventh defendant mortgaged items 28 and 29 to the present appellant and petitioner. The seventh defendant died shortly thereafter. In July, 1937, a fresh proclamation was made and in 1938, a further portion of the hypotheca was sold, the sale being confirmed in August, 1938. Then in April, 1939, items 28 and 29, in which the present appellant- petitioner was interested as a puisne mortgagee, were brought to sale under the mortgage decree and purchased by the first respondent who is an assignee decree-holder. While this was pending confirmation, the appellant-petitioner filed two applications, one under Section 47 and Order 21, Rule 90 of the Civil P. C. to set aside the sale for material irregularity, the dismissal of which application gives rise to C. M. A. No. 15 of 1941; the other was filed under Section 19 of Madras Act IV of 1938 to scale down the mortgage decree on the footing that the applicant was an agriculturist judgment-debtor entitled to the benefits of the Act in respect of the decree. It is the dismissal of this application which has given rise to C.R.P. No. 651 of 1941.

(2.) The only ground on which the sale was attacked under the Civil Procedure Code was one which really depends on the uncertified adjustment which had been twice before put forward but never finally rejected. The material irregularity alleged was in fact based on the allegation that if this adjustment had been taken into account and Act IV of 1938 applied, the decree would have been satisfied and there would be nothing for which the sale could be held. But at the time when this sale was held no application had been filed to scale down the decree and it is by no means clear that the assignee decree-holder knew that the present appellant was entitled to the benefits of the Act; in such circumstances we are of opinion that, the mere holding of the sale without first applying Act IV in favour of the person. interested in the hypotheca would not amount to a material irregularity such as would justify the setting aside of the sale. After all, before it can be shown that the decree is satisfied, the appellant has to establish a number of things and it is by no means clear that all these factors which he has to establish are self-evident. There being no application pending at the time of the sale under Act IV of 1938, it seems to us that there are no grounds for setting aside this sale. C. M. A. No. 15 of 1941 is therefore dismissed with costs.

(3.) The position with reference to the application under Section 19 of Act IV is different. This application was rejected by the lower Court on the authority, of the decision in Narayanachari V/s. Annamalai Chettiar . That decision was subsequently overruled by this Bench in Periaswami Chettiar V/s. Ramaswami Goundan , wherein it was held that a puisne mortgagee against whom a decree has been passed is a judgment-debtor entitled to scale down the decree affecting the property in which he is interested. In the present case the petitioner is not a puisne mortgagee against whom a decree has been passed. The decree was actually passed against the mortgagor under whom the petitioner claims, the petitioner having acquired his interest years after the passing of the decree. It remains therefore to be considered whether in such circumstances the petitioner can be said to be a judgment-debtor entitled to the benefits of the Act with reference to the mortgage decree which binds the property in which he has acquired an interest after that decree was passed. On this subject, the decision in Palani Goundan V/s. Peria Goundan appears to govern the matter. In that case, we had to consider the position of a person who had purchased property already bound by a mortgage decree. We held that such a person was entitled to scale down that decree as a judgment-debtor, although not actually in the array of parties in the mortgage suit. We pointed out that in the absence of any definition of the term judgment-debtor in Act IV of 1938, the term could be understood as including a person whose liability is a , debt as defined by the Act when the debt in question was a judgment-debt. It seems to us that the same line of reasoning must govern the present case. The petitioner by reason of his mortgage had before 1 October, 1937, acquired an interest in property bound by this mortgage decree and had therefore in the light of Perianna's case (Perianna V/s. Sellappa become liable to discharge the debt decreed. He must therefore be deemed to be a judgment-debtor entitled to apply under Section 19 if he is an agriculturist.