(PALAVALASA) SURAMMA NAYURALU Vs. (SAVIRIGANA) SURAYYA

JUDGEMENT

(1.) This appeal raises the vexed question of priority in regard to the right to possession, when the competing claimants are purchasers at execution sales under different mortgage decrees against the same mortgagor. The facts in their chronological order may be briefly set out:

(2.) I find no difficulty in holding that the position of defendant 6 is that of a puisne mortgagee and I am further prepared to hold that his execution petition must for the present purpose be treated as a suit to enforce his mortgage. That being so, the; salient facts are these : (1) The suit by the first mortgagees was earlier in date. (2) The earliar purchase was that made in the suit of the puisne mortgagee. (3) That purchase was made during the pendency of the first mortgagees action. The contest is between the plaintiff, who traces his right to the earlier sale in the later suit (by the puisne mortgagee) and defendants 3 to 5, who claim under the later purchase in the earlier action (by the prior mortgagees). The plaintiff was in possession on the date of the suit, and the learned District Munsif, holding that he was entitled to remain in possession, has granted an injunction restraining defendant 3 to 5 from interfering with the plaintiff's possession. That decree of the trial Court has been reversed by the Subordinate Judge, bud in my opinion the District Munsif's view is correct and that of the lower appellate Court is wrong.

(3.) Where each of several simple mortgagees files a separate suit, impleading his mortgagor alone and not other mortgagees, and in execution sales different persons become purchasers, it must now be taken as settled, that priority of date of purchase gives priority of title to possession; the fact that a particular mortgage was earlier in date or that a particular suit was filed earlier, being immaterial. Such conflict as there was on the point, must now be taken to have been set at rest by the recent decision of the Full Bench in Nagendraa Chettiar v. Lakshmi Ammal 1933 Mad. 583. This rule, I think, rests on sound principle. The mortgages being simple, possession remains with the mortgagor and he is the person in law entitled to it. It follows therefore that a sale of his interest in a suit either by a prior or a puisne mortgagee must convey to the purchaser the mortgagor's right to possession, the only question being in which suit was the earlier sale made. On the date of that sale the mortgagor having the right to possession, that right becomes transferred to the vendee. The plaintiff on the facts stated above must therefore be held to have a preferential right to possession. The question next arises, is that right affected by the doctrine of lis pendens, as the purchase under which the claim, was made during the pendency of the suit brought by the prior mortgagees? I think not. The rights of the second mortgagee are unaffected by the first mortgagees suit his right to redeem the prior mortgage remains, so also is his right to sell the equity of redemption preserved. The argument was at one time put forward that the subsequent) mortgagee could only claim to redeem the prior mortgage and only after such redemption, could sue for sale, but the Courts have repelled this contention : Mulla Vittil Seethi V/s. Achuthan Nair (1911) 9 I.C. 513 and Chinnu Pillai V/s. Venkatasamy Chettiat 1917 Mad. 751. I may quote the following passage from the judgment in the first mentioned case: These observations are not confined to the mere preservation of the subsequent mortgagee's right to redeem the previous mortgage. If the eights of the puisne encumbrancer, who was not made a party to the suit of the prior mortgagee, are preserved in every respect the right to sue for the sale of the equity of redemption, which existed previous to the suit by the first mortgagee, must continue to remain after it.