GANGADHAR DHANJISHET Vs. LAKSHMAN MAHADEV KULKARNI

JUDGEMENT

(1.) The contest in this case is between the first mortgagee who purchased in execution of a decree on his mortgage and the auction-purchaser in execution of a decree on the second mortgage. One Chindu and his brother mortgaged the property in dispute to one Gangadhar on March 6, 1913. On June 8, 1915, there was a partition between the two brothers and the property fell to the share of Chindu. Gangadhar obtained a decree on his mortgage in suit No. 864 of 1918 on November 25, 1918, and in execution purchased the property himself. Gangadhar obtained possession of the property on January 17, 1928, a March, 21, 1928.

(2.) The title of the opponent arises under the following circumstances. One Khambate was a mortgagee under a second mortgage dated June 24, 1922, and brought suit No. 4fi6 of 1925, on the mortgage and obtained a decree on November 9, 1925. In execution of the decree on the second mortgage, the opponent Lakshman Kulkarni purchased the property and applied on January 11, 1928, for being put in possession under Order XXI, Rule 95, of the Civil Procedure Code. The learned Subordinate Judge put the opponent in possession of the property and ejected the applicant from the land. This revision application has been filed by the first mortgagee who purchased the property in execution of his mortgage decree, and was put in possession and subsequently dispossessed.

(3.) According to the decision in Shankar Venkateah Vs. Sadashiv Mahadji (1913) I.L.R. 38 Bom. 24 : s.c. 15 Bom. L.R. 817, the purchaser at an auction sale becomes the owner not only of the mortgagor's rights but also of the mortgagee's rights or in other words the purchaser becomes entitled to all the rights of the mortgagor as existing at the date of the mortgage. It would, therefore, follow that Gangadhar when he purchased the property in execution of his mortgage decree obtained not only the rights of the mortgagee but also the rights of the mortgagor at the date of his mortgage. The purchaser in execution of the second mortgage cannot be entitled to higher rights than the rights of the second mortgagee and has a right to redeem the first mortgage. The first mortgagee in possession under a prior sale may always shield himself under his mortgage and his purchase, though his right to possession may be defective. The puisne mortgagee's right, when he was not a party to first mortgagee's suit, is limited to a right of redemption or sale of the mortgaged properties subject to the lien of the first mortgagee or auction-purchaser on a decree by the latter. He cannot compel the first mortgagee to part with possession without redeeming the first mortgage. See Ram Narain Sahoo V/s. Bandi Pershad (1904) I.L.R. 31 Cal. 737. This view is consistent with the decisions in the cases of Muhammad Usan Rowthan V/s. Abdulla (1900) I.L.R. 24 Mad. 171, Baijanath V/s. Bhimappa (1900) 3 Bom. L.R. 92 , and Desai Lallubhai Jethabhai V/s. Mundas Kuberdas (1895) I.L.R. 20 Bom. 390. As between competing auction-purchasers the principles governing priority are the same as those which regulate the claims of priority among mortgagees. The rights of the second mortgagee are regulated by Section 75 of the Transfer of Property Act which lays down that " every second or other subsequent mortgagee has, so far as regards redemption, foreclosure, and sale of the mortgaged property, the same rights against the prior mortgagee or mortgagees as his mortgagor has against such prior mortgagee or mortgagees, and the same rights against his subsequent mortgagees as he hag against his mortgagor." It is clear, therefore, that the opponent as a purchaser in execution of the second mortgage has no higher rights than the second mortgagee and has a right to redeem the first mortgage.