SRINIVASA AIYANGAR Vs. VELLAYAN AMBALAM

JUDGEMENT

(1.) The plaintiff's suit is for redemption. The plaint mentioned land belonged to one Venkataranganatha Naicker. It was sold in execution of a Small Cause decree against him and the plaintiff obtained it under a sale from one Tavazi Ambalam, whose father purchased it from the auction purchaser. The auction sale held on the 13 of July, 1891, was confirmed on the 14 of September, 1891. While the property was under attachment, the owner of the property mortgaged it to the predecessor-in-title of the defendant on the 15 June, 1891, under Ex. I. The mortgagee under Ex. I had paid off a prior mortgage existing on the property. The Subordinate Judge held that the mortgage under Ex. I was void under Section 64, Civil Procedure Code, that the defendant, the assignee of the mortgage interest, prescribed for an absolute title to the property, that the prior mortgage which was paid off by the defendant did not subsist at the time of Ex. I and that the plaintiff's suit was barred by limitation. He therefore dismissed the plaintiff's suit.

(2.) It is argued by Mr. Bhashyam Aiyangar on behalf of the plaintiff (appellant) that the Subordinate Judge's decision that the defendant had prescribed for an absolute title to the property is wrong, that the alienation of the suit property made while the attachment was pending is only voidable at the option of the plaintiff, that the present suit cannot, therefore, be considered to have been barred by limitation and that, at any rate, since the prior othi was paid off by the mortgagee under Ex. I, the plaintiff could sue for the redemption of that othi.

(3.) Mr. Muthukrishna Aiyar appearing for the respondent has not tried to support the decision of the Subordinate Judge that the mortgagee under Ex. I could, if the mortgage is invalid, prescribe for an absolute title and, therefore, the cases cited by the appellant, namely Gopal Dasu V/s. Rami (1921) ILR 44 M 946 : 41 MLJ 194 and Ayisa Bivi Ammal V/s. Kalandarasa Rowther and Nadepena Appamma v. Chinnaveadu against the decision of the Subordinate Judge on that point need not be considered.