LINGANNA NAGANNA Vs. AHMADSHAH

JUDGEMENT

(1.) THE plaintiff-respondent Ahmedshah attached the rights of redemption in certain property. Some months later the, mortgagee sued for foreclosure without making Ahmedshah a party. While this suit was pending Ahmedshah brought the rights of redemption to sale and purchased them himself. After this the mortgagee-appellant obtained a final decree for foreclosure. The plaintiff sued for redemption and has obtained a decree.

(2.) THE question which I have to consider is whether Ahmedshah has a subsisting right of redemption. It is conceded before me that the attaching creditor was a necessary party to the foreclosure suit, and that so long as he remained an attaching creditor, he had a right of redemption. This point seems clear from Section 91, T.P. Act. The attaching creditor can institute a suit for redemption of the mortgaged property, that is to say, he has a right of redemption; and Order 34, Rule 1, Civil P.C., directs that all persons having an interest in the right of redemption shall be joined as parties to any suit relating to the mortgage.

(3.) I hold, then, that Ahmeshah has a subsisting title to redeem the mortgaged property. I need not deal at length with the argument that Ahmedshah has lost his right because he failed to institute a suit under Order 21, Rule 103, Civil P.C., or within three years after the criminal Courts had decided that he had not a right to present possession. In both cases the suit, which must be instituted within a limited period, is to establish a right to present possession of the property. The present suit is for redemption and is not a claim to the "present possession" of the property: it does not challenge the correctness of the order under Rule 100, Rule 21, Civil P.C., or the order passed by the Magistrate. The appeal therefore fails and is dismissed with costs on the appellant.