MARUDANAYAGAM PILLAI Vs. MANICKAVASAKAM CHETTIAR

JUDGEMENT

(1.) This is an appeal from the judgment and order of the High Court of Judicature at Madras dated 24th September 1941 which, on appeal, modified the judgment and order of the Subordinate Judge of Mayavaram dated 15 February 1939. The question in the appeal is whether a safe of immovable property, including land in the village of Tiruvali, made in execution of a mortgage decree obtained by the respondent against the appellant's predecessor is bad as regards the said land and should be so far set aside under O. 21, R. 90, Civil PC, on the ground of material irregularity and fraud in publishing and conducting the sale.

(2.) The said mortgage was executed on 26 January 1925 by one Srirangathammal in respect of land in three villages, including that of Tiruvali, to secure the repayment within one year of Rs. 36,000, with interest at the rate of 15 per cent. per annum. The mortgagor was the widow of the last male proprietor of the estate, holding therein the limited interest of a Hindu widow, and the appellant was the next presumptive reversioner. So far as regards the land in the village of Tiruvali and certain other lands, the mortgage was expressed to be made subject to a prior mortgage (hereinafter referred to as the "prior mortgage") dated 16 November 1924 by the same mortgagor in favour of third parties, to secure repayment of Rs. 44,500 and interest. The prior mortgage included lands not covered by the respondent's mortgage. In 1929, the mortgagees instituted a suit on the prior mortgage before the Subordinate Judge of Mayavaram joining the respondent as puisne mortgagee, and on 12 August 1929 obtained a decree for Rs. 79,238-2-6 with a direction for sale if the moneys were not paid by 12 February 193O. The realisations under this decree will be mentioned later.

(3.) In 1930, the respondent instituted a suit before the same Subordinate Judge on his mortgage, and on 7th October 1930 obtained a preliminary decree for Rs. 66,778-11-9, and on 27 July 1931 a final decree. In 1931, in a suit instituted by the appellant as next reversioner against the said Srirangathammal for an injunction to restrain her from committing waste, a receiver was appointed for the estate, and on 7 April 1981 he was added as a defendant in the suit on the prior mortgage, and on 27 July he was added as a defendant in the suit on the respondent's mortgage. On 15 December 1931, the respondent applied, under R. 66 (2) of O. 21 for execution of his decree and he annexed to his application a draft proclamation which directed that the sale should be subject to the mortgage decree obtained on the prior mortgage, and contained this statement: "A low valuation is made as there is a prior charge of about Rs. 80,000, according to the said decree in respect of the aforesaid properties."