P RAMA AIYAR Vs. TBAGAVATHIMUTHU PILLAI

JUDGEMENT

(1.) This is an appeal by the twenty-ninth defendant in a mortgagee's suit for sale. The plaintiff sued for sale on foot of a mortgage Ex. A dated 21 December, 1922, for a sum of Rs. 10,000. The twenty-ninth defendant was the holder of a mortgage(Ex. VIII) dated 19th July, 1922, for Rs. 5,000, but the amount due under this mortgage has been, from time to time paid up in the following manner; by a sale to the appellant himself under Ex. I dated 26th January, 1925, of some of the items comprised in the mortgage and certain other items for a sum of Rs. 3,250; again by a sale by the mortgagor's brother under Ex, XIII dated 8th February, 1925, for a sum of Rs. 3,500 out of which a sum of Rs. 2,500 was paid to the twenty-ninth defendant; and lastly, by a sale under Ex. II dated 21 December, 1926, by the mortgagor to the appellant for a sum of Rs. 3,075. It may be mentioned that between the dates of Ex. XIII and II, the twenty-ninth defendant had instituted a suit (O.S. No. 271 of 1926) for the balance then due under his mortgage after giving credit for the moneys received under Exs. I and XIIJ and it is the amount due under that decree that was satisfied by Ex. II.

(2.) In the present suit, the twenty ninth defendant claimed the benefit of S, 101 of the Transfer of Property Act in respect of the various mortgaged items of which he had become the purchaser. The lower Court allowed. him that benefit in respect of the properties covered by Ex. II but refused his claim in respect of the properties covered by Exs. I and XIII. This appeal relates only to the properties covered by Ex. I.

(3.) The reason given by the lower Court for negativing the plaintiff's claim in respect of the properties covered by Ex. I is that: As the mortgage is not fully discharged, there can be no priority so far as Ex. I is concerned.