PERUMAL KONAR Vs. MARUTHANAYAGAM NADAR

JUDGEMENT

(1.) THE case decided in Ma Gun V/s. Mg. Lu Gale 1925 Rang 130, is identical with the present case. That decision is based on a decision of the Bombay High Court in Magan Lal V/s. Shakra Girdhar (1898) 22 Bom 945, which says that: By sale of a mortgaged property in execution of a decree obtained by a mortgagee against the mortgagor upon the mortgage the interest of both the mortgagor and mortgagee passes to the purchaser.

(2.) THIS principle has been accepted by this Court in Govindan Asari V/s. Nagayam Chettiar 1932 MWN 160. If this principle is right then it follows that the mortgagor must make good to the mortgagee the loss sustained by him for breach of the covenant regarding his title involved in the contract of mortgage: ( Section 65.) The amount sued for in the present case represents the value of the property of which the mortgagee-purchaser was deprived in O.S. No. 456 of 1925. The decisions relied on by the lower Court have no application to this case. I set aside the decision and give the plaintiff a decree for the amount sued for with interest from the date of plaint at six per cent. The petitioner is entitled to get his costs here and in the lower Court.