MARIYAPPA NADAR Vs. RAMANUJA NAICK

JUDGEMENT

(1.) On 1 October 1914, defendant 1, on behalf of himself and his sons, mortgaged four items of suit property to defendant 8, who represents also defendants 6 and 7. Towards the e August, 1916, defendant 1 purchased the remaining six items of the suit property; but as ha had not sufficient money to pay for the whole of the consideration, he mortgaged all the ten properties in favour of the plaintiff on 30 August 1916. In 1921 defendants 6 and 7 brought O.S. No. 28 of 1921, a suit for sale, with regard to the four items of property mortgaged to them and the property was bought in auction by defendants 6 and 7. The plaintiff was not imp leaded in that suit. As the property did not fetch an amount sufficient to meet the whole of the mortgage debt, defendants 6 and 7 obtained a personal decree against defendant 1 for the remainder; and in execution of that decree, they attached on 31 May 1926 the remaining six items of the suit property. On 1 October 1926, while the attachment was subsisting, these six items of property were sold to the plaintiff for Rs. 500, the consideration not being paid in cash, but credited to the mortgage debt by way of partial discharge. In October 1928, defendants 6 and 7, who had brought the six items to sale in pursuance of, their attachment, were resisted in delivery proceedings. The plaintiff was unsuccessful in the consequent claim petition and he therefore brought the present suit on 6th December 1928, which is a suit for sale of all the ten items of property.

(2.) The questions that arise in this appeal are whether, in view of the fact that the plaintiff purchased the six items, he is precluded from bringing a mortgage suit against the six items and whether the plaintiff is entitled to bring to sale the share of defendants 2 to 5 in the four items. The Courts below decided both these points in favour of the appellants, except for a small change made by the Appellate Court, and these points have been made the subject of a memorandum of cross-objections. the appeal arises1 because of an apparent omission of the lower Appellate Court in not making it clear that the Rs. 500 could be paid only out of the sale proceeds for the 3/8 share of the four items. Admittedly, this is a mistake and so no discussion on that point is necessary. It is only the memorandum of cross-objections that needs further discussion.

(3.) The argument advanced on behalf of the, appellants was that although, because of the prior attachment, the sale is not binding on defendants 6 to 8, yet as there was a sale the mortgage was extinguished thereby and no mortgage suit therefore lies with respect to these six items of property. The argument on behalf of respondent 1 was that by virtue of Section 101, Transfer of Property Act, as it was before the amendment, there was a continuance of the mortgage if it was in the interest of the purchaser to keep the mortgage alive for Section 101 makes no mention of intention. Although it has been found that the plaintiff had no knowledge of the attachment; yet as it was in his interest at the time of the sale to keep the mortgage alive, it must ho deemed that the mortgage did continue for his benefit even after the sale; and as it was not extinguished, he is permitted to bring this suit on the mortgage. This argument was sought to be reinforced by an argument from analogy based on Venkatasarrii Chettiar V/s. Sankara Narayana Chettiar (1985) 22 A.I.R. Mad 12 which follows Venkat Reddy V/s. Kunjappa Goundan (1924) 11 A.I.R. Mad 650. The earlier decision is to the effect that if in a mortgage sale a puisne mortgagee is not imp leaded, the auction purchaser is entitled to bring a separate suit against the puisne mortgagee, which necessitates the conception that in spite of the fact that the mortgage was extinguished by a sale of the property, yet for certain purpose it is considered to continue. The opinion of Ananthakrishna Ayyar J. was there referred to with approval and the reason given by Ananthakrishna Ayyar J. for holding that the mortgage must be considered to be subsisting is that : The circumstance that the mortgagee filed a suit against a wrong person does not affect the rights of the real owners of the equity of redemption. If it does not affect them at all, one fails to see how they could be heard to say that by virtue of the prior suit, which admittedly does not affect them, a (second) suit against them is not maintainable. So far as they are concerned the second is the only suit against them and the first suit and the proceedings connected with the same must be taken to be non est in the eye of the law.