SATU VITHUJI Vs. DAGDU BHAGU

JUDGEMENT

(1.) The facts found by both the Courts below are those:- The plaintiff (respondent No. 1 before us) mortgaged the property in dispute to the first and the second defendant. The first defendant, who held money bonds executed in his favour by the plaintiff, assigned them to the fifth defendant (appellant in this second appeal). The fifth defendant sued the plaintiff on those money bonds and obtained a decree, in execution of which the property in dispute, mortgaged to the first and the second defendant, was attached. The fifth defendant, with the leave of the Court, purchased the property at the execution sale.

(2.) The plaintiff brought the present suit to redeem. Both the lower Courts have found upon the evidence that the assignment of the money bonds by the first defendant was a sham and colourable transaction, entered into by him for the purpose of defeating the provisions of Section 99 of the Transfer of Property Act and purchasing the property mortgaged, in the name of the fifth defendant. The lower Courts have held that the Court purchase by the fifth defendant is void under the provisions of that section and have allowed the plaintiff's claim to redeem.

(3.) Before us it is contended that when a mortgagee purchases the property mortgaged to him in execution of his own money decree, notwithstanding the provisions of Section 99 of the Transfer of Property Act, the purchase is not void but only voidable and that if a suit is not brought by the mortgagor to set aside the sale within a year after its confirmation, as required by Art. 12 of Schedule II to the Limitation Act, the sale must be treated as binding upon the mortgagor.