KUTTI CHETTIAR Vs. SUBRAMANIA CHETTIAR

JUDGEMENT

(1.) The appellant instituted an action by which he sought to recover possession of a house from the defendants-respondents and further prayed in the alternative for partition of the house and delivery of possession to him of one moiety of it on payment by him to the defendants of one half of the amount for which the latter bought the property at a Court auction sale held in February 1900. The circumstances which led the plaintiff to make his claim are as follows:

(2.) The house in question and shops belonged originally to two undivided brothers of a joint Hindu family viz., Kuppusawmi and Basappa. On the 29 June 1894, Kuppusawmi hypothecated a moiety of the house and also of one of the shops to one Veeraraghava Chetti. Then the two brothers, on the 14 July 1894, partitioned the properties, and in the partition each of them got a shop while the entire house fell to the share of Basappa who agreed to pay the whole of the debt payable to Veeraraghava. On the 22 August, 1895, both Kuppusawmi and Basappa joined in selling the two shops to one Chockalingam Chetty. On the 29th January 1896, Veeraraghava instituted a suit, No. 38 of 1896, to enforce his mortgage, impleading Kuppusawmi, Basappa and Chockalingham Chetty as defendants, obtained on 27 January 1897 usual mortgage decree, and in execution thereof took steps to sell the attached properties which included the moiety of one of the two shops bought by Chockalingham and the half share of the house in dispute. Chockalingham, in order to save the moiety of one of the shops in which he was interested, paid the entire decree amount to Veeraraghavan and the sale was stopped. This was on the 7 October 1897. While the suit instituted by Veeraraghavan was pending, Basappa and his sons had, on 2 October, 1896, mortgaged the entire house and some other property to Ambalathadi Chetti. The result, therefore, is that Chocklingam. by paying the decretal amount due to Veeraraghavan became subrogated to Veeraraghavan's rights as the first mortgagee of one moiety of the house, while Ambalathadi Chetty would have a second charge over that moiety and a first charge over the other.

(3.) Chockalingham next instituted a suit, O.S. No. 191 of 1898, against Kuppusawmi and Basappa and their sons to recover the amount of Veeraraghavan's decree which Chockalingam had paid, and asked not only for a personal decree but also for sale of the house in question. To this Ambalathadi Chetty was not made a party, and the impleaded defendants not having appeared a decree was made on 26 November 1898 ex parte in favour of Chockalingham's representatives (Chockalingam having died in the meantime) in the nature of a mortgage decree ordering sale of the house and other properties of the judgment- debtors in default of payment by them of the decree amount. In execution of that decree Chockalingam's representatives--the defendants in the present suit-- purchased the whole of the house and the sale certificate was issued on the 16th October 1900 and possession delivered to them on the 19 November 1900. On the 29 August 1899, Ambalathadi Chetti instituted a suit, O.S. No. 3 of 1899, to enforce the mortgage executed in his favour by Basappa and his sons on the 2nd October 1896, and obtained a decree on 27 November 1899. It was in execution of that decree that the 2nd plaintiff in the present suit purchased the entire house in February 1901. The defendants in this action were not made parties to Ambalathadi Chetti's suit. Upon these facts which are undisputed, both the lower Courts were right in holding that the plaintiff was not entitled to obtain possession of the house or of a moiety of it. His purchase was subsequent to the defendant's purchase and to the delivery of possession of the property to the latter. Can it be said that the Court auction sale at which the defendants bought did not pass the property to them? The only ground for so holding which had been suggested is that Ambalathadi Chetti's action to enforce his mortgage was pealing at the time of the execution proceedings in which the sale was held, and the defendant's purchase, although at a Court auction sale, must be subject to the result of that action. Take it to be so. All the right which the decree made in favour of Ambalathadi Chetti gave him was to realize the decretal amount by sale of the house and all that the plaintiff, standing in the shoes of Ambalathadi Chetti, can claim is to exercise that right against the defendant as the transferee of the judgment-debtor's rights in the property. The sale at which the defendants purchased the house was held in pursuance of a decree in their favour ordering it to be sold in payment of the debt due to their ancestor Chockalingam and that decree Was made before the institution of Ambalathadi Chetti's suit. The decree was binding on the judgment-debtors, the owners of the houses, unless it can be shown that it was obtained by fraudulent collusion between them and the defendants. The lower appellate Court, no doubt, finds to that effect, but this finding being based merely on the fact that Chockalingam was not in law entitled to a charge on more than one moiety of the house and that the defendants in that connection did not contest his claim to a charge on the entire house cannot evidently be sustained. These facts without more do not make out a case of fraud and collusion. No doubt in the suit instituted by Chockalingam, Ambalathadi Chetti was not made a party, and whatever interest, therefore, the latter had in the property at the time would not be affected by the decree which followed. He had then a mortgage charge on the entire house, but a moiety of that house was admittedly subject to a prior charge in favour of Chockalingam. The decree that was passed in. Chockalingam's suit made the other half also liable for payment of the debt due to Chockalingam but subject to a prior charge on that half in favour of Ambalathadi Chetti. When, therefore, defendants bought the house in execution of their decree no saleable interest was left in the judgment-debtor. As pointed out in Venkatanarasammah V/s. Ramiah 2 M. 108; Nanack Chand V/s. Teluckdye Koer 5 C. 265; 4 C.L.R.358 and Akatti Moidin Kutti V/s. Chirayil Ambu 26 M. 486 where there is a question between the purchasers at two distinct Court sales held on different dates in execution of two several mortgage decrees the Court in deciding between the two competing titles is guided not by the dates of the several mortgages but of the several purchases. For both the mortgagees have an equal right to sell the property, and once it is sold at the instance of one mortgagee there is no further saleable interest left in the judgment-debtor to be | sold again. Apart, however, from the effect of the two sales on the question of title to the property, the defendants as representatives of Chockalingam, would have a first charge on one moiety, and the plaintiff claiming the rights of Ambalathadi Chetti has a second charge on that moiety, and the plaintiff has a first charge on the other half and the defendant a second charge on that half. We are asked by the learned Advocate- General, who appears for the appellant, to give his client such relief as he may be entitled to upon the above state of facts even if he be held to have no right to the possession of the house.