MONGOLA SWAYI Vs. VISVANATHA SANTASO SINGARAO

JUDGEMENT

(1.) THE first defendant was the owner of the property. A money decree was obtained against him by one Venkateswara Rao. In execution of that decree, the properties in suit were attached. To obviate the sale, the 1st defendant borrowed from the plaintiff and gave him a mortgage on the property. Without paying the amount to the decree-holder, he retained the money. He did not enter up satisfaction of the decree. Venkateswara Rao brought the property to sale in court auction and 4th defendant became the purchaser. THE 5th defendant is a mortgagee under the 4th defendant. Plaintiff sues on his mortgage.

(2.) THE defence is that Section 66 of the Code of Civil Procedure (Act V of 1908) bars the suit. THE Courts below have rejected this plea and we think rightly. THE suit is based on the mortgage and treats the 1st defendant as the owner. THE 4th and the 5th defendants are impleaded as being in possession. THE plain-tiff s case is not that the 4th and 5th defendants hold the property for his benefit but that they are unlawfully in possession against his mortgagor s rights. As pointed out by the Judicial Committee in Ganga Sahai v. Kesri (1915) I.L.R 37 All. 546, 555, the object of the section is to prevent purchases being made in Court sales benami for the plaintiff. If the plaintiff comes into Court with the case that the person who stands between him and the property is his alias, then the section would bar him. THE present question under Section 66 arises not because of plaintiff s claim under a benami purchase but because the defendant sought to resist the mortgage on the ground that it was made after an attachment and was therefore obnoxious to Section 64 of the Civil Procedure Code. THE reply of the plaintiff was that Section 64 cannot affect him because the 4th and the 5th defendants have no better rights than the 1st defendant has. In our opinion, Section 66 does not affect this class of cases. It is open to argument as pointed out by the Patna High Court in Ram Khelavan Pande v. Asghar Ali (1916) 36 I.C. 681 that a plaint will not be within the mischief of Section 66 if the claim was anterior to that of the resisting purchaser. Even apart from this view, as the claim against defendants 4 and 5 is not based on their purchase being for the benefit of the plaintiff, the objection fails and must be overruled. THE view taken in Allahabad in Kishan L al v. Garuradhwaja Prasad Singh (1899) I.L.R. 21 A. 238, and in Ram Narain v. Mohaiman I.L.R 26 All. 82 did not do justice to the intention of the legislature as pointed out by the Privy Council in Ganga Sahai v. Kesri (1915) I.L.R37 All. 546, 555 and we are not prepared to follow them. As regards Rama Kurup v. Sridevi (1892) I.L.R 16 Mad. 290 : 2 M.L.J. 173 it is enough to say that the narrow view taken in that case did not find favour with Subrahmania Aiyar and Benson, JJ., in Kollantavida Nanikotah Onakkon v. Tiruvalil Kalandan Aliyamma (1897) I.L.R.20 Mad.362 . On another ground also, we can uphold the lower Court s decision. By the last sentence of Clause (2) of Section 66, the legislature has expressly saved the rights of third parties. Mr. Venkatachariar contended that this sentence only applies to proceedings in execution and not to suits. We are unable to agree. This part of the Civil Procedure Code deals with suits and objections thereto and not to execution proceedings. THE language "or interfere with the rights of a third person to proceed against that property," would exactly cover the present case. For these reasons, we are of opinion that the Courts below are right and dismiss the second appeal with costs.