C GANAPATHI MUDALIAR Vs. KRISHNAMACHARIAR

JUDGEMENT

(1.) Dealing first with the question whether the plaintiff was represented in the former suit O.S. No. 5 of 1886, and the execution proceedings which followed on the decree in that suit, I find no difficulty in accepting the District Judge s conclusion on that point.

(2.) The only evidence in the plaintiff s favour consists of two facts, first, in such of the documents relating to the execution proceedings as have been preserved, the date given as that of the decree is that of the decree against the father of plaintiff and not that of the final decree against the plaintiff and his brother and his father; that it is suggested shows that the decree against plaintiff was never executed. But the two decrees were identical and the one was substituted for the other after the appointment of a new guardian for the plaintiff and his brother, and the failure of that guardian to put in a defence. The date is therefore pro bably a mere mistake. Secondly the name of the plaintiff s father in some of these documents appears as his guardian, and not that of his maternal uncle Govindaraju who is proved to have been duly appointed his guardian for the suit in supersession of his father. Obviously these irregularities may have been due to carelessness of the court officials, and the effect of this evidence is more than counteracted by the fact that Govindaraju did as a matter of fact act in the execution proceedings. He preferred an appeal to the High Court, the nature of which cannot at this date be ascertained, and he prosecuted unsuccessfully an application for stay of the sale pending the disposal of the appeal. It is not shown that his locus standi was questioned by any one at that time, and it is clear that he could have had no locus standi except as guardian of the present plaintiff. His own story is that all he did was done under the directions of the plaintiffs father and that may probably be true, for it is shown that the plaintiff s father himself declined to represent his sons in the suit. No proof was laid before us that the plaintiff s father was in collusion with the mortgagee; if he had been so he would probably have remained on the record as his son s guardian; it is more likely that he wanted to set up the familiar case that his sons were not bound by the debts contracted by him, and looked to Govindaraju to make good that case. He and Govindaraju were late for court as Govindaraju says and so the suit was decided ex parte, but it has been argued here that Govindaraju was negligent or corrupt. I find no reason to suppose that the plaintiff was not duly represented throughout the execution proceedings. As a matter of fact it has not been | contended here that the plaintiff and his brother had any good defence to the suit. They were both born after the mortgages; they attempted before the District Judge to show that their father s debts did not bind them, but they failed there and have not renewed the attempt here. The other question is whether by reason of the provisions of Section 90 of the Trusts Act the mortgagee-defendants hold the equity of redemption for the benefit of the plaintiff, so that it is still open to him to redeem the mortgages.

(3.) It is urged that the sale was in contravention of the provisions of Section 99 of the Transfer of Property Act (since amended and incorporated in the Civil Procedure Code), and by this illegality the mortgagee who brought about the sale gained an advantage in derogation of the rights of the mortgagor and so became constructively a trustee for him. It is clear to me that Section 99 has no application. The sale was on a decree for sale, inartistically drawn, no doubt, but clearly a decree for sale, made in a suit for sale on a mortgage on the land sold, and there can so far as I can see be no objection to it under Section 99. Sufficient time was allowed for redemption before the sale and the fact that a date for payment was not fixed in the decree has not therefore prejudiced the mortgagor. Then it is said that the mortgagee failed to bring into his suit for sale two prior mortgages one in his own favour, and the other assigned to him before the sale, and having failed to bring them into the suit, he notified them as reserved in the proclamation of sale, and so deterred investors from competing with him for the acquisition of the equity of redemption, Thus he gained an advantage in derogation of the right of the mortgagor. Assuming that Section 90 of the Trusts Act is applicable to the case of a mortgagee who is not in possession, and taking it that the proclamation of sale is an act of the mortgagee as such, I do not think that the mortgagee in this case has been shown to have brought himself within the section.