CHIMABAI Vs. DHULA KUPPA

JUDGEMENT

(1.) This is an adjourned summons under Rule 451 of the Bombay High Court. Rules to compel a purchaser at a Court-sale of immoveable property to pay the balance of his purchase money. The principal questions that arise are: (1) whether the particulars and conditions of sale are misleading and did in fact mislead the purchaser; and (2) whether the parties were ever ad idem inasmuch as the purchaser says he thought he was buying property free from all encumbrances, and the applicant says that all he of the Commissioner intended to sell were the interests of the first mortgagee and the mortgagor in the property subject to the rights of the second and fourth mortgagees.

(2.) The summons is taken out in Suit 360 of 1911, which was originally a redemption suit brought on the 5th May 1911 by one Chimabai a widow to redeem the 1st mortgagees defendants 1 and 2 and their transferee defendant 3. Subsequently defendants 4 and 5 were added as parties in respect of a subsequent mortgage of Sth February 1912, but it is common ground that their claims have been disposed of in pursuance of a consent decree of 3rd December 1915 and accordingly they and their mortgage may, 1 think, be eliminated for the purpose of the present application.

(3.) Therefore so far as appears from the record of the suit and the parties to it, the only persons now interested in the property are the plaintiff as mortgagor and defendant 3 as first mortgagee, he holding under a mortgage of 16th December 1909 and a transfer thereof to himself of 17th October 1910. In fact there are two other mortgages the holders of which are not parties to the suit, viz., (I) a second mortgage of 13th April 1911 for Rs. 2000 to Damodar Shri Krishna (since deceased) and his wife Rakhmabai, and (2) a fourth mortgage of 13th April 1916 for Rs. 3000 to Rakhmabai (then a widow) and Govindnath Ramnath Mahimkar. It will be observed that the above second mortgage was prior to the suit and that the above fourth mortgage was after it. As I have already pointed out I eliminate the 3rd mortgage of 8th February 1912.