NARAYANA MUDALI Vs. RAGHAVAMMAL

JUDGEMENT

(1.) IN this case the plaintiff obtained a submortgage of the 2nd defendant's interest-under a usufructuary mortgage from the 1 defendant of the 12 September.1892. He sued on this sub-mortgage in O.S. No. 6 of 1897 on thee file of the District Munsif's Court of Chingleput and on appeal obtained a decree for the sale of the mortgaged property as well as a personal decree. IN execution, the land mortgaged to the 2nd defendant under the mortgage of the 12 September 1892 was put up for sale and purchased by the plaintiff and he obtained possession, but was dispossessed under Section 335 of the Civil Procedure Code at the instance of the 1 defendant who alleged that the mortgage had been redeemed. The plaintiff now seeks to recover possession and the District Judge has dismissed his suit on the ground that the plaintiff has failed to prove the sub-mortgage in this suit. The genuineness of the sub- mortgage is not a matter which concerns the 1 defendant. The plaintiff has obtained a decree on it against his mortgagee, the 2nd defendant, and the effect of that decree was to give the plaintiff a right to sell the interest of the 2nd defendant under the mortgage from the 1 defendant of 1892. This the plaintiff did, and purchased it himself. We think that as the plaintiff in the present suit succeeded in rebutting the is defendant's plea that she had redeemed the mortgage of 1892, he is entitled to be restored to possession by virtue of his auction-purchase of the rights of the 2nd defendant under the mortgage of 1893, and that the evidence given in the present case establishes such right. This is, in effect, a suit to set aside the order obtained by the 1 defendant under Section 335 of the Civil Procedure Code, and we think the plaintiff ought not to be debarred from succeeding merely because in his plaint he has mistakenly alleged that he purchased 2nd defendant's interest under a subsequent mortgage of the same lands executed by the 1 defendant in favour of the: 2nd defendant in June 1895 whereas his evidence is to show that what he purchased was the right of the 2nd defendant under the mortgage of 1892. For the 1 defendant, it has now been contended that he acquired nothing by his purchase of the rights of the 2nd defendant under the mortgage of 1892.because in consideration of a further advance, the 1 defendant executed the subsequent, mortgage of 1895 in favour of, the 2nd defendant and the first mortgage was merged, in the second. As between the 1 and 2nd defendants, it may be mat the earlier mortgage was merged, but we do not think the 2nd1 defendant, by taking the subsequent mortgage from the 1 defendant, could prejudice the rights, of the plaintiff under the sub- mortgage-already granted to him, or affect his rights to bring the 2nd defendant's lights under the earlier mortgage to sale and purchase them himself. No doubt, if the 1 defendant had paid the mortgage-debt in whole or in part before notice of the sub-mortgage in the plaintiff's favour she would have been so far discharged, but it is found that she has not paid anything. The sub-mortgage by the 2nd defendant must take precedence over every subsequent interest created by him, and the 1 defendant after notice is bound to have regard to it. We, therefore, set aside the decrees of the lower Courts and declare; that the document of the 27 March 1899 is fraudulent, and direct possession of the suit lands to be given to the plaintiff. The appeal is allowed with costs throughout.