NATESA VANNIYAN Vs. GOPALASAMI MUDALIAR

JUDGEMENT

(1.) Appeal against the order of the Subordinate Judge, Tiruvalur, in Appeal No. 57 of 1925 from the decree in O.S. No. 528 of 1923, District Munsif, Nannilam.

(2.) One Narayani Ammal sold certain property, described now as the A schedule property, in 1890 to one Subramania Sastri. Her husband Swaminatha Aiyar executed a security bond, Ex. F, undertaking that if Subramania Sastri, the vendee, should be deprived of any of the property for various reasons he would compensate him with equivalent property, now described as the B schedule property. Subsequently Subramania Sastri mortgaged the A schedule property, the mortgagee sued and brought the property to sale, and it was bought in court auction by one Namasivaya Pillai who sold the property to the present plaintiff. Meanwhile Muthusavvmi Aiyar, the second son of Narayani Ammal, sued to cancel the original sale, succeeded, and then dispossessed Namasivaya Pillai, and his vendee the plaintiff. The plaintiff now sues to enforce the security bond Ex. F on the ground that it is a covenant running with the A schedule kind which enures to the successors to the title of Subramania Sastri. The 3 defendant, the present appellant, is a purchaser of certain items of the B schedule property and contends that the plaintiff has no right to enforce the bond against the property in his possession. The District Munsif dismissed the suit and the Subordinate Judge finding that the bond was enforceable remanded it for disposal upon the remaining issues.

(3.) The learned District Munsif dismissed the suit on the short ground that no warranty of title could pass in a court sale, and therefore whatever rights the successors to the title of Subramania Sastri might have claimed before the mortgagee brought the property to sale, had gone when Namasivaya Pillai bought the property at that sale. This argues a certain confusion of thought.