A M A FIRM BY MANAGING PARTNER MURUGAPPA CHETTIAR IN THEPLACE OF A M A PALANIAPPA CHETTIAR Vs. MARUDACHALAM CHETTIAR (DIED)

JUDGEMENT

(1.) This second appeal is preferred by the plaintiff whose suit was decreed by the District Munsiff, Tirupur, but dismissed on appeal by the District Judge, Coimbatore.

(2.) One Sivasubramania Chettiar and four others executed on the 18 April, 1925, a security bond in favour of the defendants 9 to 13 and the father of the plaintiff and the father of defendants 8 and 14. Suit O.S. No. 301 of 1928, Sub- Court, Coimbatore, was filed to enforce the security bond against the suit house and other properties. Defendants 4 to 7 who were not the executants of the security bond contested the claim and the suit as against their 1/3 share in the suit house was dismissed and a preliminary decree against the 2/3 share of the executants was passed on 12 November, 1932 (Ex. P-1). While that suit was pending the Tirupur Municipality instituted suit O.S. No. 943 of 1930 in the District Munsiff's Court, Tirupur, for recovery of arrears of property tax due in respect of the suit house for the years 1927-28, 1928-29, and 1929-30 and claimed a first charge on the suit house under Section 85 of the Madras District Municipalities Act. To that suit, the persons holding the security (who may be hereafter termed second mortgagees) were not impleaded as parties, though they were interested in the right of redemption. The Municipality obtained a decree and in execution of that decree the suit house was brought to sale and one Kumaraswami Chetty became the purchaser on 23 August, 1932. The auction purchaser sold the property to defendants 1 and 2 under a sale deed dated 13 June, 1934. In execution of the final decree in O.S. No. 301 of 1928, the plaintiff and defendants 8 to 15 pur-chased 2/3 share of the suit house on 15 January, 1936, and obtained symbolical possession on 9 December, 1938.

(3.) The present suit was instituted by one of the purchasers in O.S. No. 301 of 1928 for redemption of 2/3 share of the suit house, for partition and possession of that share and for an account of the mesne profits received by defendants 1 and 2 as well as for future profits, impleading the other purchasers as defendants 8 to 15. The defendants 1 and 2 are purchasers from Kumaraswamy and are in possession of the suit house. The 3 defendant is a subsequent mortgagee from defendants 1 and 2 of the suit house and defendants 4 to 7 are the original owners of the 1/3 share. The plaintiff and defendants 8 to 15 contend that as they were not made parties to the suit by the Municipality which was in the position of a first mortgagee, their right of redemption was not affected and that the purchase by Kumaraswamy was affected by the doctrine of Us pendens.