ANNAMALAI CHETTIAR Vs. SRINIVASARAGHAVA AIYENGAR

JUDGEMENT

(1.) This is an application to revise the order of the learned Subordinate Judge of Kumbakonam striking out the names of the petitioners, who had been impleaded as defendants 18 to 20 in O.S. No. 3 of 1930 as unnecessary parties thereto. The argument of the learned Counsel for the petitioners before us is that though they may not be necessary parties, they having been made par. ties to the suit, it is not open to the learned Judge to pass the order he did. The relevant facts to deal with this contention are few and not in dispute the petitioners obtained a decree for money in O.S. No. 41 of 1915 on the file of the Subordinate Judge of Kumbakonam on 22 December, 1916 against certain defendants personally and against certain defendants as legal representatives of their predecessor-in-title. Subsequent to the date of this decree, the plaintiff in the suit out of which this application arises obtained a mortgage on 16 October 1919 from defendants 1 to 17 in the suit, some of whom were parties to the suit, O.S. No. 41 of 1915, and some of whom were represented therein by their predecessor-in- title. The present suit, O.S. No. 3 of 1930, was instituted to enforce the said mortgage and the present petitioners were imp leaded as defendants 18 to 20 on the ground that they attached the mortgaged properties in execution of their decree and the said attachment was subsisting. The petitioners pleaded inter alia that they had a paramount claim by virtue of their decree in O.S. No. 41 of 1915, that they were entitled to priority, and that they were therefore not necessary parties to the suit. One of the issues in the suit relates to this question of priority. Of course they also raised other defences regarding the truth and validity of the mortgage and the extent of interest that would properly pass under the deed of mortgage. They ware not allowed to raise issues which would not be open to the mortgagors-defendants to raise but were allowed to remain on record to safeguard their interests by an order dated 3 November 1930. But when the suit came on for trial, the trial Judge took the view that having regard to the pleadings in the case they were unnecessary parties to the suit and he therefore directed their names to be struck out and subsequently passed a preliminary decree in favour of the plaintiff on 22 July, 1931. Subsequent to the date of this decree, petitioners proceeded to execute their decree in O.S. No. 41 of 1915, brought the properties to sale in pursuance of the attachment already effected by them and purchasing the properties them. Halves on 10 October 1931. It is subsequent to this purchase that the petitioners preferred this revision petition and also the appeal (Appeal No. 570 of 1931) complaining against their removal from the record. Subsequent to the filing of the revision petition and the appeal, a final decree was passed in the suit, O.S. No. 3 of 1930 and the mortgaged properties were brought to sale and purchased by the plaintiff. Thus the legal positions which the plaintiff in O.S. No. 3 of 1930 and the petitioners occupy are these: the plaintiff in O.S. No. 3 of 1930 is a purchaser in execution of the mortgage decree obtained by him and the petitioners sire auction-purchasers in execution of the money decree obtained by them, subsequent to the preliminary decree on mortgage obtained by the plaintiff in O.S. No. 3 of 1930. The question is whether on this state of facts we ought to interfere with the order of the learned Subordinate Judge.

(2.) So far as our High Court is concerned, in cases governed by the Transfer of Property Act before the Amendment it was settled by the decision of the Full Bench reported in Subramanian Chettiar V/s. Sinnammal (1930) 17 A.I.R. Mad 801 that an attaching creditor is not a necessary party to a suit on a mortgage. The view of the learned Subordinate Judge that the petitioners as attaching creditors are not necessary parties is correct. Again, his order striking their names out in so far as they purported to assert a paramount claim and raised questions of priority is also correct. But is his order justified if the petitioners are viewed simply as attaching creditors? They may not be necessary parties in that the plaintiff cannot be compelled to join them on the ground that no effective decree could be passed without their being on the record but by virtue of the statutory right of redemption conferred Under Section 91(f), Transfer of Property Act, they will be proper parties to the suit and it is not open to a Court to strike out the name of a party as an unnecessary party if he was otherwise a proper party to the suit. But the question still remains whether in view of the altered circumstances as a result of the Court auction purchase the petitioners can be given the relief they seek in their revision petition. The principle upon which an attaching creditor is given the right of redemption is stated by Wallis O.J. in Chamiyappa Tharagan V/s. Rama Ayyar (1921) 8 A.I.R. Mad 30 thus : He is merely allowed, while the attachment la in force, to exercise any right of redemption the judgment-debtor may be entitled to for the purpose of bringing the judgment-debtor's interest to sale in execution of his decree more advantageously than if it were sold subject to the mortgage.

(3.) Even apart from Section 91, an attaching creditor may in certain cases be permitted to intervene and be made a proper party to the suit for the purpose of safeguarding his rights, i.e., to see that the interest of his judgment-debtor which might be sold under the mortgage decree to be passed is correctly determined. But this again is to enable him to effect a more advantageous sale of the interest of his judgment-debtor. The reason of the rule however disappears when the attachment ceases to be in force and an attaching creditor sheds the character of an attaching creditor either when the attachment is raised or is otherwise put an end to. It is on the basis of this principle our High Court has taken the view in Veyindramuthu Pilial V/s. Maya Nadan (1920) 7 A.I.R. Mad 126 and Chamiyappa Tharagan V/s. Rama Ayyar (1921) 8 A.I.R. Mad 30 since affirmed by the Full Bench in Subramanian Chettiar v. Sinnammal (1930) 17 A.I.R. Mad 801 that if the attaching creditor proceeds to sell the property in execution of his decree the Court sale releases the property altogether from attachment and with it the right of redemption which the statute confers on him and such rights as ha can allege as an attaching creditor also go with it. Wallis C.J. explains the position thus in Chamiyappa Tharagan V/s. Rama Ayyar (1921) 8 A.I.R. Mad 30 at p. 240: Coming now to the attaching creditor's alleged eight to redeem any mortgage there may be on the attached property, it follows that this right must also come to an end together with the attachment itself on the sale to the auction purchaser in execution of the decree. Thereafter the attaching creditor has no concern with the property, while on the other hand the auction purchaser has acquired any equity of redemption, or sight to redeem the mortgaged property, that the judgment-debtor may have had In the property, and there is no necessity or justification for holding that the attaching creditor's right to redeem is transferred to the purchaser in the Court sale in execution of his decree.