A R M KARUPPAN CHETTIAR Vs. VENKATA PERUMAL

JUDGEMENT

(1.) I agree that this appeal must fail. A case almost exectly on all fours with the present case was decided by a Bench of this Court in Venkataramana Reddi V/s. Rangiah Chetti A.I.R. 1922 Mad. 249. Seeing that the question at issue arises under Section 89, T.P. Act, which has now been repealed by the Civil Procedure Code of 1908, the question is not likely to come up for decision except on vary rare occasions and it is, therefore, unnecessary to discuss the law at length. I agree with Sadasiva Ayyar, J., in his judgment in Venkataramana Reddi V/s. Rangiah Chetti A.I.R. 1922 Mad. 249, and am content to follow that decision.

(2.) On the question of limitation also I agree with my learned brother. The appeal accordingly fails and must be dismissed with costs. The memorandum of objections is dismissed. Odgers, J.

(3.) In this case the plaintiff appeals from a decree of the Subordinate Judge of Chittoor wherein he decided that defendant 15 is entitled to priority with regard to item 16 in respect of his prior mortgage right to the extent of the decree debt due under the decree in O.S. No. 23 of 1891. Ex. 15 comprises the said item. It was purchased in O.S. No. 23 by a Court purchaser from whom defendant 15 acquired it. The plaintiff in the case was a puisne mortgagee and not a party to O.S. No. 23. The mortgage in question was dated 1891. The learned Subordinate Judge distinguishing the case of Het Ram V/s. Shadi Ram A.I.R. 1918 P.C. 34, and relying on the decision in Gokal Das Gopal Das V/s. Perumal Premsukhdas [1884] 10 Cal. 1035, Umeshl Chander Sircar V/s. Zahir Fatima [1891] 18 Cal. 164 and Venkataramana Reddi V/s. Rangiah Chetti, has decided that defendant 15 is entitled to priority as stated. The question before us has been argued as purely one of law on the decisions. Mr. Somayya for the plaintiff does not contend that he has any merits, nor is it apparent why the appellant should now acquire better or fresh rights from the omission to make him a party to O.S. No. 23 of 1891. The question is, therefore, whether the purchaser in Court auction of the mortgage right is entitled to set that up as a shield against the puisne mortgagee who was not made a party to the suit on the mortgage. One thing of course is perfectly clear and that is not being a party the plaintiff's rights cannot be worse than they would have been had he been duly arrayed as a defendant in that suit. But he insists that they are bettor owing to the effect of the decision in Het Ram's case A.I.R. 1918 P.C. 34. The matter falls under Section 89, T.P. Act and he relies on the words in Section 89 (now altered and transferred to the Civil Procedure Code): and thereupon the defendant's right to redeem and the security shall both be extinguished.