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Dattatraya Mangeshaya Chikarmani Vs. Venkatesh Vasudeo Prabhu - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 472 of 1921
Judge
Reported in(1922)24BOMLR741
AppellantDattatraya Mangeshaya Chikarmani
RespondentVenkatesh Vasudeo Prabhu
DispositionAppeal dismissed
Excerpt:
decree-execution-possession of auction purchaser-suit by mortgagee-auction purchaser not made a party to the suit-decree on mortgage-sale of the property-auction-purchaser at the second sale-second auction purchaser suing to obtain possession from the first purchaser-limitation-adverse possession of the first purchaser.;in execution of a money-decree against a mortgagor his rights in the mortgaged property were purchased at a court-sale by the defendant, who went into possession of the property in 1899. the mortgagee sued on the mortgage in 1905, without making the defendant a party to the suit, and obtained a decree. in execution of the mortgage-decree the mortgagor's rights in the mortgage were again sold at a court auction and purchased by the mortgagee in 1912. the mortgagee sold her..........rights were sold to the defendant's predecessors. clearly what could have been sold then was the equity of redemption. laxmibai in 1905 brought a suit on her mortgage. a decree was passed and in execution the mulgeni rights were sold by the court to the heirs of laxmibai, who sold in 1917 to the present plaintiff. the predecessor of the defendant, the owner at the time of the equity of redemption, was not a party to the mortgagee's suit. but he was in possession, and when the plaintiff as a purchaser went to get possession, the persons actually cultivating the land refused to give possession or pay rent to him. consequently the plaintiff brought this suit.2. now the possession of the purchaser at a sale by a mortgagee in execution of the decree in a suit brought by him on his mortgage,.....
Judgment:

Norman Macleod, C.J.

1. This was an appeal from the decision of the District Judge of Kanara setting aside the decree of the trial Court in favour of the plaintiff. The facts are as follows. One Narayanrao was the owner of the Mulgeni rights of the suit property. In 1890 he mortgaged his Mulgeni rights to Laxmibai. In 1899 a creditor got a money decree against Narayanrao, and in execution his Mulgeni rights were sold to the defendant's predecessors. Clearly what could have been sold then was the equity of redemption. Laxmibai in 1905 brought a suit on her mortgage. A decree was passed and in execution the Mulgeni rights were sold by the Court to the heirs of Laxmibai, who sold in 1917 to the present plaintiff. The predecessor of the defendant, the owner at the time of the equity of redemption, was not a party to the mortgagee's suit. But he was in possession, and when the plaintiff as a purchaser went to get possession, the persons actually cultivating the land refused to give possession or pay rent to him. Consequently the plaintiff brought this suit.

2. Now the possession of the purchaser at a sale by a mortgagee in execution of the decree in a suit brought by him on his mortgage, the owner of the equity of redemption not being a party to the proceedings, is not the possession of an owner of all the interests in the property. He buys subject to the equity of redemption, and therefore, by virtue of his purchase, only steps into the shoes of the mortgagee. So what was purchased by the auction-purchaser in 1912 was only the mortgage rights of Laxmibai, since the owner of the equity of redemption was not a party to the suit. If the purchaser bad obtained POSSESSION, the position might have been different. Bat not being in possession, he was bound to take proceedings to obtain the benefit of his purchase, and he cannot get possession unless he has that right as a successor to the original mortgagee Laxmibai. Laxmibai would be clearly barred from bringing a suit to obtain possession or have the property sold to realise the mortgage amount and the result must be that the plaintiff is equally barred.

3. We have been referred to the decision in Muthia Chetti v. Subbayyan : (1892)2MLJ200 where no doubt the facts were very similar to the facts in this case, and it was held there that the plaintiff's suit ought not to be dismissed but the defendant should be allowed the option of redeeming within the time to be fixed by the Court, and in case of his failure to do so, the plaintiff would be entitled to recover possession. But that case was decided in 1892 at the time when it was thought that a mortgagee out of possession had sixty years wherein to file a suit on his mortgage. Therefore that case cannot be considered an authority which will assist us in deciding this case. I think, therefore, the decision of the learned Judge was right and the appeal must be dismissed with costs.

Coyajee, J.

4. I concur.


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