GANESH NARAYAN KHARE Vs. GOPAL VISHNU APTE

JUDGEMENT

(1.) The claim of the plaintiff s in this suit is to redeem and recover the plaint property. They allege that the plaintiff No. 1 (since deceased) mortgaged the property with possession to defendant No. 1 by a deed dated the 7th September 1888 and that the cause of action arose in September 1893. The defendants admit the mortgage, but say that in 1902 the right of redemption was sold in execution of a decree of one Mahadeo Vithal Lagu and was purchased by one Eaghunath Krishna Tilak from whom it was purchased by the defendant No. 1 on the 20th December 1902.

(2.) The learned trial Judge finds that in 1897 the 1st defendant brought a suit against the mortgagor for a claim independent of the mortgage and obtaining a decree assigned it to Mahadeo Vithal Lagu. Lagu, in execution, attached the equity of redemption in the mortgaged property. The purchaser at the auction sale was Eaghunath Krishna Tilak and Eaghunath in the same year transferred his right to the 1st defendant. The lower Court finds it proved that the assignment of the decree to Lagu and the purchase by Eaghunath Tilak were benami for the 1st defendant. The lower Court, however, held that the purchase by the 1st defendant was valid until it was set aside and not having been set aside in execution proceedings was binding upon the plaintiffs and he allowed the claim for redemption only in respect of the share of the 2nd plaintiff, the son of the original mortgagor.

(3.) From that decree an appeal was preferred to the lower appellate Court and in the memorandum of appeal the finding that the decree was in respect of a claim independent of mortgage was not challenged. The lower appellate Court reversed the decree of the trial Court and remanded the case for taking accounts on the footing that both mortgagors should be allowed to redeem. The ground of the decision appears to be this, that it being established that the defendant No. 1 who was a mortgagee had purchased the mortgaged property benami, he must have purchased it without leave to bid and therefore, the mortgagor could disregard the sale and could redeem. Apparently at the base of this conclusion is the idea that there must have been some fraud and that fraud would make the sale void and not voidable. In my opinion the conclusion of the lower appellate Court is wrong.