VANHERI MANAKKAL PURUSHOTHAMAN NAMBUDRI Vs. PURUMPULANIL SANKUNNI MENON

JUDGEMENT

(1.) We think that the view taken by the lower Courts that the jenmi s title was extinguished by the order for sale obtained in the prior suit by the melkanomdar is not correct. Tlie jenmi could not have worked out his rights in that suit as he was not entitled to pay the redemption money under the decree, and as Section 93 of the Transfer of Property Act, which was then applicable, did not permit him to ask the Court for an order for sale as he was not the mortgagee,though he was a defendant. Though he was a mortgagor he could not have applied under the authority of Govinda Targan, C.P. v. Veeran 12 Ind. Cas. 432 : (1911) 2 M.W.N. 323 : 10 M.L.T. 322 : 21 M.L.J. 914 : 36 M. 32 as he was not then the plaintiff.

(2.) On the order for sale being made at the instance of the mortgagee the jenmi could not apply to have the sale carried out, whatever the rights of the plaintiff might be. If the property had been sold his rights might have been affected thereby, but he would then have had the power under Section 310(a) of the old Code of Civil Procedure (corresponding to Order XXI, Rule 89) to apply to have the sale set aside on payment. In this case there was no sale.

(3.) Section 91 of the Transfer of Property Act extinguishes only the plaintiff s right to redeem on an order for sale being passed, and it extinguishes the security, i.e., the security of the mortgagee so far as the plaintiff is concerned.