K JAGANNATHA KONE Vs. RAMACHANDRA NAIDU

JUDGEMENT

(1.) The suit out of which this second appeal arises has been filed to impeach the validity of a Court sale in execution of a decree for mesne profits in O.S. No. 75 of 1911 on the file of the Additional District Munsif's Court of Madura. O.S. No. 75 of 1911 was filed by six plaintiffs, defendant 5 in this case being plaintiff 6 in that case, for recovery of possession of certain lands from defendants 1 and 2 therein. During the pendency of the suit an application for the appointment of a receiver was made being I. A. No. 235 of 1911 to manage the suit properties or to direct the said defendants to furnish security in the sum of Rs. 700, the probable amount of mesne profits and costs. By an order dated 20 March 1911 it was directed that defendant 1 in the said suit should give security for Rs. 700 within three weeks from the date of the order or in default a receiver should be appointed. In pursuance of the said order the said defendant 1 executed a security bond dated 17 July 1911 in and by which he gave the said property and some other property as security for Rs. 700. He also covenanted that he will not in any way alienate the properties except with the orders of Court. The security bond was in favour of the Court of the Additional District Munsif at Madura. On 6 December 1.911 there was a decree for possession and mesne profits. The said decree was confirmed in appeal by the District Court on 31 March 1913.

(2.) There was a second appeal to the High Court which was withdrawn on 1 November 1915. Subsequent to the date of the decree in the trial Court, by a deed dated 4 September 1912, the plaintiff's brother purchased the suit property for a sum of Rs. 4,650. A sum of Rs. 700 was retained in deposit with him. The conditions subject to which Rs. 700 was retained is thus stated in the sale deed : "Rs. 700 retained in deposit with you on condition that if in the suit, O.S. No. 75 of 1911 on the file of the Additional District Munsif of Madura in which No. 1 of us, the defendant, has given the present sale properties and some other properties as security for mesne profits in favour of the plaintiff Ramanuja Nayudu, we succeed, we shall get the sum, and if the plaintiff succeeds, the amount shall be given to him." Possession of the suit properties appears to have been given to the plaintiff's brother and at a subsequent partition between the plaintiff and his brother the plaintiff obtained this property and aver since the date of sale the plaintiff's family and after that the plaintiff has been in possession thereof. Subsequent to the withdrawal of the second appeal in the High Court defendant 5 who was plaintiff 6 in O.S. No 75 of 1911 obtained an assignment of the decree from his co- plaintiffs and sought to execute the decree both for possession and mesne profits.

(3.) The said mesne profits were ascertained in I. A. No 128 of 1924 in the sum of Rs. 2,028 and Rs. 36 for costs and on 2 August, 1924 a decree was passed for the said sum. Defendant 5 put in an execution application for the recovery of the entire sum by sale of the suit property and in execution thereof purchased the same on 23 November 1925 and the said sale was confirmed on 4 January 1926, when he proceeded to obtain delivery of possession he was obstructed by the plaintiff and the plaintiff then put in a petition to set aside the execution sale on the ground that no notice was issued to him and that the sale was for an amount far in excess of the amount for which the suit property was given as security. The said petition was directed to be treated as a suit and it was consequently registered and tried as a suit. The learned District Munsif who tried the suit gave a decree in favour of the plaintiff but the learned Subordinate Judge reversed his decision holding inter alia that the sale was valid and no notice was necessary as the plaintiff must be deemed to have been precluded by the doctrine of lis pendens from contesting the Court sale and also that the sale for the entire amount of the mesne profits was valid. It is against this decision that the second appeal is filed. The first point argued by Mr. Rajah Iyer is that the sale having been held without notice to the plaintiff must be deemed to be invalid as the property subsequent to the execution of the security bond was alienated in favour of the plaintiff's brother and on the date of the sale it vested in the plaintiff. It has now been definitely settled by the Privy Council in Raj Raghubar Singh V/s. Jai Indra Bahadur Singh 1919 42 All 158 that a security bond similar to the one in the present suit given in favour of the Court does not constitute a mortgage within the meaning of the Transfer of Property Act so as to attract the procedure laid down in that Act and the consequent necessity of a suit to enforce it.