CHAGANLAL HIRALAL CHAWARE Vs. ISMAILJI MOHAMMAD ALI BOHARI

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. The facts found by the lower appellate Court with reference to which questions of law raised in the present appeal are to be decided are these: On 27th October 1923, in Suit No. 40 of 1923, defendant 1 attached before judgment a house belonging to defendant 2. This house was already mortgaged by defendant 2 with the plaintiff as far back as 23rd March 1916. The attachment obtained by defendant 1 over the house continued till it came to an end by the sale of the house in favour of defendant 3 on 26th August 1928. During the continuance of the attachment the plaintiff filed a suit (Suit No. 104 of 1924) for foreclosure, on the basis of his mortgage of 1916, on 4th July 1924, obtained a preliminary decree on 27th February 1925, got it made final on 9th October 1926 and took possession of the house on 12th October 1926. The plaintiff unsuccessfully objected to the attachment and sale of the property in execution of defendant 1's decree. He therefore filed the suit, out of which this appeal arises for a declaration which the lower appellate Court rightly interprets to mean that the plaintiff should be allowed to be in possession of the house free from any kind of disturbance at the hands either of defendant 1 or defendant 3 by way of an attempt at redemption of his mortgage.

(2.) IN a well-considered judgment the lower appellate Court dismissed the plaintiff's suit holding that since the plaintiff had failed' to implead defendant 1, who was the attaching creditor, as a party defendant to his mortgage Suit No. 104 of 1924, he was not entitled to the declaration claimed by him. This decree is now assailed by the plaintiff in the present appeal.

(3.) THE next argument advanced on behalf of the appellant is based on Chamiyappa Tharagan v. Rama Ayyar AIR 1921 Mad 30 which is recently followed by the Madras High Court in the Full Bench decision of Subramania Chettiar v. Sinnammal AIR 1930 Mad 801 where it is laid down that an attaching creditor in a simple money decree is not a necessary party to a mortgage suit. But the earlier Madras decision was expressly doubted by this Court in Linganna v. Ahmedshah , which lays down that an attaching creditor has a right of redemption and is therefore a necessary party to a suit relating to a mortgage under Order 34, Rule 1, Civil P. C. The facts of the present case appear to be quite analogous to those of Lakhpat Rai v. Fakhruddin (1917) 39 All 536 where it is laid down that if a mortgagee omits to make the attaching creditor a party to his mortgage suit not only the attaching creditor but the auction purchaser, who derives his title through the attaching creditor, retains the right to redeem the mortgage. That an auction purchaser can be' a representative of the decree-holder in certain cases is also expressly recognized by this Court in Sunderabai v. Shrikisan AIR 1924 Nag 328. With due respect to the learned Judges of the Madras High Court I accept the view of this Court propounded in Linganna v. Ahmedshah and that of the Allahabad High Court in Lakhpat Rai v. Fakhruddin (1917) 39 All 536. To the same effect is the decision of the Bombay High Court in Dadoba Arjunji v. Damodar Raghunath (1894) 16 Bom 486. For the reasons given above the decree appealed against appears to be correct and this appeal fails and is dismissed with costs.