VENKATA REDDY Vs. KUNJAPPA GOUNDAN

JUDGEMENT

(1.) The 4 defendant is the appellant. The suit as originally framed was one for foreclosing a mortgage executed by the 1 defendant and the father of the 2nd and 3 defendants on the 3 of April 1914 in favour of the 5 defendant. The 4 defendant was the auction-purchaser of one-half of the properties mortgaged in execution of a money-decree obtained against the father of the 2nd and 3 defendants. He was not made a party to the suit on the mortgage. A decree was passed in the mortgage-suit (O.S. No. 156 of 1917 filed by the 5 defendant) on the 5 of October. 1917 for Rs. 723-7-9 with costs and future interest. The plaintiff became the purchaser of the properties in execution of the mortgage-decree for Rs. 757 on the 3 of July 1919. When he attempted to take possession of the properties, the 4 defendant resisted the claim in so far as the half share of defendants Nos. 2 and 3 was concerned and the plaintiff was referred to a suit. He then filed the present suit out of which, this second appeal arises.

(2.) The prayers in the plaint are that the plaintiff's right as auction-purchaser may be declared; that the 4 defendant may be directed to pay. the plaintiff the balance of the mortgage debt and interest from the date of the mortgage up to the date of the plaintiff's sale which he says amounts to Rs. 867-8-0 with future interest and then to redeem the plaint properties, that in the event of the properties not being redeemed, the 4 defendant should be deemed to have lost his equity of redemption, and that on the happening of such an event the 4 defendant should be directed to deliver possession of the properties to the plaintiff. A prayer was subsequently added asking for a sale of the properties if they are not redeemed and possession given and for the recovery of any balance from the defendants.

(3.) The 1 defendant filed a written statement pleading that he is not in possession of the plaint properties, that he never obstructed the plaintiff from taking possession and that there is no cause of action against him. Defendants Nos. 2 and 3 filed no written statements. The 4 defendant filed a written statement pleading inter alia that his father bought one-half share in the plaint properties in Court-sale and was put in possession, that his father was and after his death he, the 4 defendant, is in lawful possession, that the plaintiff and his mother- in-law (the mortgagee) had notice, that although they had notice, the plaintiff in O.S. No. 156 of 1917 when she sued on the mortgage did not implead the 4 defendant as a party, that the decree in that suit does not bind the 4 defendant, that when a final decree was passed in the mortgage-suit, the mortgage became extinguished and no cause of action exists as on the mortgage, that he never obstructed the plaintiff from taking possession of the properties, that a suit for foreclosure would not lie as the mortgage was a simple mortgage, that the plaintiff does not derive any rights under the mortgage, he being simply an auction-purchaser in a Court-sale and not a party to the original mortgage, that even assuming that the 4th defendant has to redeem, he is not bound to redeem the whole mortgage, that the persons whose shares he bought were divided from the 1 defendant and they received only Rs. 100 out of the mortgage-money and that he is only bound to pay Rs. 100 and not the whole amount due on the mortgage if he should be directed to redeem the property. On the amendment of the plaint by adding a prayer for sale an additional written statement was filed by the 4 defendant pleading that the plaintiff has no right to bring the properties to sale, that his claim for such a relief is barred by limitation, that the mortgage was discharged before the date of the suit and that there was no mortgage on which any decree could be passed.