DATTATRAYA LAXMAN KULKARNI Vs. DAULATA HARI CHAVAN

JUDGEMENT

(1.) This is a second appeal which raises a question as between the purchaser at an auction sale held in execution of a decree upon a prior mortgage and the puisne mortgagee who, even though the mortgage was prior to the date of the suit, was not made a party to the prior mortgagee's suit. The prior mortgage was not with possession, and the puisne mortgage was, and it is common ground now that, at the date when the property was sold in execution of the prior mortgagee's decree, it was in possession of the puisne mortgagee. He was dispossessed in execution of the decree and had gone to the Court already under Section 9 of the Specific Relief Act; but he was defeated there, because the Court took the view correctly that he had been dispossessed in due course of law.

(2.) There were several defences taken in this case by the purchaser, who is the prior mortgagee himself; but one defence which was not taken was that the prior mortgagee had no notice of the puisne mortgage. The puisne mortgage was a registered mortgage. It is common ground that at the time when the suit was filed the puisne mortgage had been entered in the record of rights, though the prior mortgagee's suit being for sale it was not necessary for the plaintiff to produce extracts from the record of rights along with the plaint in respect of the land which had been mortgaged to him. But the fact remains that no question had been raised by the mortgagee auction purchaser that he had, as a matter of fact, no notice of the puisne mortgage when he filed the suit. The principal defence which was taken was on a point of law. It was contended on behalf of the prior mortgagee that, when there was a sale held in execution of the decree for sale which had been obtained by him, he, as the purchaser, took the interest not only of the mortgagee, but also of the mortgagor, and he took the interest of the mortgagor to it was not at the date of sale but at the date of the mortgage, and in support of this contention reliance was placed on behalf of the mortgagee upon three cases of this Court, the ones of Mohan Manor V/s. Togu Uka (1885) I.L.R. 10 Bom. 224, Dadoba Arjunji v. Damodar Raghunath (1891) I.L.R. 16 Bom. 486 and Desai Lallubhai Jethabhai V/s. Mundas Kuberdas (1895) I.L.R. 20 Bom. 390.

(3.) On the other hand, the contention which was advanced on behalf of the plaintiff, the puisne mortgagee, was that, when the puisne mortgagee was not made a party to the suit which had been filed by the defendant, he was not bound by anything which took place as a result of the decree in that suit because he could not possibly be affected by proceedings to which he was not a party. As a puisne mortgagee he was entitled to remain in possession of the property, even though the mortgage of the defendant was prior, because the mortgage of the defendant was a simple mortgage. Subsequently, when the defendant purchased in execution of the decree the property in the suit from which the present appeal arises, he became entitled to the interest of the mortgagee at the date of the mortgage and the interest of the mortgagor as it remained to him at the date of the suit on the prior mortgage, and inasmuch as the puisne mortgagee intervened in between the purchaser took qua purchaser subject to the mortgage in favour of the plaintiff.