KOPPARTHI BALA LINGAYYA Vs. SUNKU NALLAYYA (DECEASED)

JUDGEMENT

(1.) The appellant's vendor was the mortgagee of a two-thirds share in the suit house. That mortgage had been executed by the uncles of Subbayya; and what they mortgaged purported to be their two-thirds share of that house. They died soon afterwards and a mortgage suit was brought against Subbayya as the legal representative of his uncles and in execution of the resultant decree the appellant's vendor purchased the property. Subbayya himself had mortgaged the whole of the house to the respondent, purporting to act as manager of the family of himself and his two uncles. The respondent brought a suit on that mortgage and purchased the house in execution. It was delivered on 13 July, 1930. When the appellant tried to obtain possession, he was obstructed by the respondent. He sought for the removal of that obstruction, but his petition was dismissed on the ground that his proper remedy was to file a partition suit, such as was suggested in Mandavalli Rama Rao V/s. Sivanarayana (1918) 9 L.W, 81 and Nambiamattil Pokker V/s. Kithakki Kunhi Paihuma (1905) I.L.R. 29 Mad. 296. Instead of taking the matter in appeal, the appellant filed the suit out of which this second appeal arises. The District Munsiff went into the various contentions raised and found that the mortgage in favour of the appellant's vendor was a nominal document not supported by consideration. He also found that the mortgage in favour of the respondent by Subbayya was valid and binding on his uncles. In appeal, the learned District Judge did not give any finding on these questions of fact, but dismissed the appeal on two questions of law. He was of opinion that the present suit did not lie because the proceeding between the appellant and the respondent in execution was one between the parties or their representatives in interest. He was also of opinion that the question in issue had been already decided against the appellant in a subsequent proceeding to which both were parties.

(2.) On the first point, I am of opinion that the learned District Judge was right. If we take the case of two decree-holder auction-purchasers of property sold in executing two simple money decrees, then the decree-holder in the first execution proceeding, because he purchased the judgment-debtor's property, became a representative of the judgment-debtor in the execution of the other decree. The decree-holder auction-purchaser in the second case, however, retains his status as a decree-holder; and so the contest between him and his rival claimant is a dispute arising in execution between the decree-holder on the one hand and the representative of the judgment-debtor on the other. This was made clear in Veyihdrdmuthu Pillai V/s. Maya Nadar (1919)38 M.L.J. 32 : I.L.R. 43 Mad. 107, which overruled Thangavelu Mudali V/s. Mohamed Ibrahim Sahib (1911) 3 L.W. 377 on which the appellant relies.

(3.) Where the decree that is being executed is a mortgage decree, the considerations are somewhat different; but the result is very much the same. The decree-holder auctjon- purchaser in the second execution is still the decree-holder, while the rights of the other decree-holder auction-purchaser to possession are based on his purchase of the possessory rights that the judgment-debtor had in the property. It is true that a decree-holder auction- purchaser in a mortgage suit acquires the rights of the decree-holder as well as those of the judgment-debtor and so to some extent represents the decree-holder as well as the judgment-debtor; but in opposing the claims of the decree-holder in the second execution he is certainly putting forward rights acquired by him from the judgment-debtor which would disentitle the decree-holder in the second execution to proceed against property in which the judgment-debtor had no longer an interest, the whole rights in the land having been acquired by the earlier decree-holder in his own execution proceedings.