VELU PADAYACHI ALIAS SADAYA PADAYACHI Vs. ARUMUGAM PILLAI

JUDGEMENT

(1.) The properties in suit were attached and brought to sale in execution of a simple money-decree After that decree was passed, the judgment-debtor (1st defendant) , executed a usufructuary mortgage over them in favour of the second defendant in this suit, who in his turn assigned his mortgage rights to the present plaintiff. When the present plaintiff sued to recover possession of the properties on the strength of the mortgage, an objection was raised by the 3rd defendant, who was the auction-purchaser at the sale a in execution of the simple money-decree, that the suit was barred by limitation.

(2.) It appears that the plaintiff s assignor applied a few days before the sale to have the properties sold subject to his mortgage and asked the Court to have it so stated in the sale proclamation. The claim was dismissed as being made too late. The date of the order was 24th August, 1911. The present suit was not instituted till 1916 and is clearly out of time if Article 11 of the Limitation Act applies to it. The Subordinate Judge, dissenting from the view of the District Munsif, held that the suit was in time as the mortgagee s application in August 1911 was, in his opinion, directed towards the settling of the terms of the sale proclamation and as such, fell under Order 21 Rule 66, of the Code of Civil Procedure, and not under Article 58.

(3.) The respondent seeks to support the lower Appellate Court s order on the ground that there was no prayer in the application that the attachment should be raised, nor any declaration in the order that the mortgage was no longer subsisting. He further argues that, assuming the order of August 24th was an order upon a claim petition, such an order will only bind those who were parties to it and therefore an auction-purchaser who was not a party to those proceedings cannot take advantage of the fact that the claim was dismissed. I am of opinion that none of these representations and arguments can avail the plaintiff who has come to Court after the period prescribed by law.