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S.M.S. Subramanian Chettiar (Dead) and anr. Vs. Sinnammal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1930Mad801; (1930)59MLJ634
AppellantS.M.S. Subramanian Chettiar (Dead) and anr.
RespondentSinnammal and ors.
Cases Referred and Chamiyappa Tharagan v. Rama Aiyar I.L.R.
Excerpt:
- - pending the attachment, the 1st defendant, the mortgagee, filed a suit to recover the money due upon his mortgage but he failed to make the plaintiff who was then the attaching decree-holder a party to his suit on the mortgage. it follows that this contention raised by the learned advocate for the appellant should fail......important questions of law, one turning on the construction to be placed upon order 41, rule 33, civil procedure code, and the other on section 91 of the transfer of property act read with order 34, rule 1, civil procedure code.2. the first question has been answered in favour of the respondents and against the appellant by a full bench of this court at an earlier stage of this letters patent appeal.3. the only other question that remains for decision is whether the plaintiff, on the facts stated in the order of reference, is entitled to redeem the 1st defendant's mortgage. the plaintiff was a money decree-holder against the judgment-debtor, the mortgagor, and in execution of his money-decree he attached the mortgaged properties. pending the attachment, the 1st defendant, the.....
Judgment:

Anantakriskna Aiyar, J.

1. This Letters Patent Appeal raised two important questions of law, one turning on the construction to be placed upon Order 41, Rule 33, Civil Procedure Code, and the other on Section 91 of the Transfer of Property Act read with Order 34, Rule 1, Civil Procedure Code.

2. The first question has been answered in favour of the respondents and against the appellant by a Full Bench of this Court at an earlier stage of this Letters Patent Appeal.

3. The only other question that remains for decision is whether the plaintiff, on the facts stated in the Order of Reference, is entitled to redeem the 1st defendant's mortgage. The plaintiff was a money decree-holder against the judgment-debtor, the mortgagor, and in execution of his money-decree he attached the mortgaged properties. Pending the attachment, the 1st defendant, the mortgagee, filed a suit to recover the money due upon his mortgage but he failed to make the plaintiff who was then the attaching decree-holder a party to his suit on the mortgage. In course of time the plaintiff became purchaser in Court-auction in execution of his money-decree and obtained possession. The mortgagee, the plaintiff in the other suit, also became purchaser in execution of the decree passed on the foot of his mortgage. The question that arises in the present suit is whether the plaintiff, the attaching decree-holder who subsequently became also the auction-purchaser in execution of the money-decree, has got the right to redeem the mortgage on the ground that Section 91(f) of the Transfer of Property Act gives him such a right to redeem since he was not made a party to the mortgage suit.

4. The first point that arises for consideration in this connection is as to the exact scope of the expressions appearing in Section 91(a) and (b) of the Transfer of Property Act, namely, 'a person having any interest in or charge upon the property' and 'any person having any interest in or charge upon the right to redeem the property' read along with Order 34, Rule 1, Civil Procedure Code, 'all persons having an interest either in the mortgage security or in the right of redemption.' I am clear that the cases contemplated by Section 91(a) and (b) exhaust the class of cases contemplated by Order 34, Rule 1, Civil Procedure Code, and that it is only (persons interested in the mortgage security or in the equity of redemption that have necessarily to be made parties to a suit under Order 34, Rule 1, Civil Procedure Code. This is the view that has been taken in Chamiyappa Tharagan v. Rama Aiyar I.L.R. (1920) M. 232 : 40 M.L.J. 65 and in Veyindramuthu Pillai v. Maya Nadan I.L.R. (1919) M. 696 : 39 M.L.J. 456. It is also clear that attachment in execution of a money-decree does not itself create any interest in or charge over the properties which are the subject-matter of the attachment. This has been decided by the Privy Council in Moti Lal v. Karrabuldin and is not open to question. Having regard to the construction placed on Section 91(a) and (b) of the Transfer of Property Act, and to the view taken regarding the scope of Order 34, Rule 1, Civil Procedure Code, it seems to me that it could not be said that a person in the position of the plaintiff, namely, an attaching decree-holder in execution of a money-decree against the mortgagor is a necessary party to a suit under Order 34, Rule 1, Civil Procedure Code.

5. The question then arises whether the plaintiff, simply because under Clause (f) of Section 91 he is given a right to redeem, as an attaching decree-holder, is entitled in the circumstances that have happened in this case to claim redemption. It has been held by Oldfield, J., in Veyindramuthu Pillai v. Maya Nadati I.L.R. (1919) M. 696 : 39 M.L.J. 456 that any rights he might have qua attaching decree-holder are not available to him when the properties have been sold in execution through Court; and that view has been accepted by two learned Judges of this Court, Sir John Wallis, C.J., and Seshagiri Aiyar, J., in Chamiyappa Tharagan v. Rama Aiyar I.L.R. (1920) M. 232 : 40 M.L.J. 65. It was argued that, if under Clause (f) an attaching decree-holder has been given a right to redeem, then, whatever might be the exact category under which the right could be placed, not having been a party to the mortgagee's suit, his rights could not vanish. The answer to this is furnished in the judgment of Oldfield, J., and the other learned Judge in Veyindramuthu Pittai v. Maya Nadan I.L.R. (1919) M. 696 : 39 M.L.J. 456. The Legislature evidently saw the impropriety of retaining Clause (f) of Section 91 after the Privy Council made it clear that an attachment as such does not create any title to, or interest or charge on, the properties attached in favour of the attaching decree-holder, and has accordingly omitted clauses (f) and (g) from the section in the Transfer of Property (Amendment) Act, 1929. The case is not consequently of any general importance and could not arise under the present law; and I am not prepared in the circumstances to reconsider the point decided by the three learned Judges of this Court in Veyindramuthu Pillai v- Maya Nadan I.L.R. (1919) M. 696 : 39 M.L.J. 456 and Chamiyappa Tharagan v. Rama Aiyar I.L.R. (1920) M. 232 : 40 M.L.J. 65 whose observations I have already referred to and I respectfully follow their opinion on this point. It follows that this contention raised by the learned Advocate for the appellant should fail. The Letters Patent Appeal should, for these reasons, be dismissed.

6. But having regard to the fact that the Lower Appellate Court exercised the rather extraordinary jurisdiction that Courts have under Order 41, Rule 33, Civil Procedure Code, and granted a decree in favour of the respondents though the respondents had not preferred an appeal to it, and for that reason directed that they should have no costs of the litigation, I think that this Letters Patent Appeal should, in the circumstances, be dismissed without costs.

Horace Owen Compton Beasle, C.J.

7. I agree and have nothing further to add.

Curgenven, J.

8. I agree.


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