1. The suit property belonged to one Venkata ranganadha Naicker. It was sold in Court auction on the 13th of July, 1891 in execution of a small pause decree obtained against him and was purchased by the predecessor-in-title of the appellant. The sale was confirmed on the 14th of September, 1891. The property was attached before sale and during the pendency of the attachment it was mortgaged on the 15th of June 1891 by Venkataranganadha Naicker to the predecessor-in-title of the defendant. The plaintiff-appellant has brought this suit for redemption of the mortgage on the ground that the defendant is only a mortgagee and that he being the owner of equity of redemption is entitled to redeem the property. The District Munsif decreed the appellant's suit, but the Subordinate Judge reversed it on the ground that the defendant had acquired a good title by prescription. On second appeal Madhavan Nair, J., held that the appellant's suit was barred under Article 137 of the Limitation Act.
2. It is contended by Mr. Bhashyam Aiyangar for the appellant that the defendant is only a mortgagee and what was sold on the 13th of July, 1891 was only the equity of redemption and that he is, therefore, entitled to redeem the property. The defendant got an assignment of the otti of the suit property on the 29th of August, 1909. There is a recital in the deed of assignment that the land was being enjoyed as per otti and hypothecation deeds and that the assignee should enjoy the lands as per deeds above referred to. On the strength of this recital it is contended that the defendant has been in possession of the property only as a mortgagee and he cannot therefore be said to have acquired any title to the property against the appellant.
3. When property is sold in Court auction what is sold is the right, title and interest of the judgment-debtor as it is on the date of the sale, and any private alienation or transfer pending the attachment is void against all claims enforceable under the attachment. Under Section 64 of the Code of Civil Procedure an auction purchaser gets title to the property free of any encumbrance or any title created by the judgment-debtor; after the property was attached is to preserve the title of the judgment-debtor as it was on the date of the attachment for the benefit of the attaching creditor and, therefore, any title created after the date of the attachment to the prejudice of the attaching creditor cannot avail against the judgment-creditor as well as the auction-purchaser. The auction-purchaser gets it free from any encumbrance or any burden that might have been created by the judgment-debtor after the date of the attachment. The mortgage of the 15th of June, 1891 could not have created a title against the auction-purchaser. The auction-purchaser obtained symbolical delivery of the property. He should have asked for possession of the property, and if he did the Court would have delivered the property to him, for the mortgagee claimed only under the judgment-debtor, and his possession, therefore, was the possession of the judgment-debtor and if he was unable to obtain possession he should have enforced his right by suit. The proper article applicable to a case like this is Article 138 of the Limitation Act.
4. Granting for argument's sake that Article 137 is applicable to the case, the appellant should have brought his suit within 12 years of the date when the judgment-debtor was entitled to possession. It is contended by Mr. Bhashyam Aiyangar that the appellant's predecessor-in-title was not entitled to possession as the property was under mortgage. Ex. I is the mortgage deed, dated the 15th of June, 1891. The period fixed in the document is five years and in 1896 therefore the mortgagor was entitled to possession. The contention of Mr. Bhashyam Aiyangar is that, so long as the usufructuary mortgagee is in possession, the mortgagor is not entitled to possession. It is very difficult to follow this argument, for when a usufructuary mortgage is created for a period of years the mortgagor would be entitled to possession on the expiry of the period; otherwise if the argument is to hold good, it might be said that for 60 years the mortgagor would not be entitled to possession. In this case the suit should have been brought within 12 years from 15th June, 1896, but it was brought on 4th April, 1918, and it is therefore barred by limitation.
5. It has been seriously argued that inasmuch as the defendant claimed only a mortgagee's right, the appellant is entitled to redeem the property. This contention overlooks the fact that the defendant never claimed to be a mortgagee under the appellant. He no doubt claimed to be a mortgagee from the judgment-debtor. There is no privity of contract between the appellant and the defendant, and, even though the defendant claims only a mortgagee's right, that would not give the appellant a right to redeem the property., If the auction-purchaser does not bring a suit for possession within 12 years, under Article 138, his suit for possession of the property purchased by him would be barred. The fact that the judgment-debtor has created a mortgage or a leasehold right pending the attachment would not enure for the benefit of the auction-purchaser who is entitled to get possession within 12 years of the sale under Article 138.
6. In this view it is unnecessary to discuss in detail all the authorities quoted for and against the contention of the appellant. In Dinendronath Sannial v. Ramkumar Ghose (1881) L.R. 8 IndAp 65 I.L.R. 7 C. 107 (P.C.) Sir Barnes Peacock in delivering the judgment of their Lordships of the Privy Council observes:
Under (a private sale) the purchaser derives title through the vendor and cannot acquire a better title than that of the vendor. Under (a sale in execution of a decree) the purchaser, notwithstanding he acquires merely the right, title and interest of the judgment-debtor, acquires that title by operation of law adversely to the judgment-debtor and freed from all alienations or incum-brances effected by him subsequently to the attachment of the property sold in execution.
7. In Girija Nath Roy Chowdhury v. Upendra Nath Pal (1912) 20 I.C. 341 it was held by Mookerjee and Beachcroft, JJ. that
If the mortgaged property was under attachment in execution of a decree when the mortgage was executed, the mortgage would be inoperative under Section 276 of the Civil Procedure Code of 1882 against the execution-purchaser, although the decree-holder was not prejudicially affected by the mortgage.
8. In Subba Reddi v. Jayaramayya (1923) 17 L.W. 680 brother Odgers, J. held that a person who has purchased the property during attachment cannot apply to set aside the Court auction-sale as the conveyance to him is void against the claims enforceable under the attachment. The principle of these decisions is that any private transfer or any title created by the judgment-debtor pending the attachment cannot in any way affect the right of the attaching creditor to have the property sold and delivered free of the title created by the judgment-debtor. The provisions of Section 64, Civil Procedure Code, are clear in its terms and no one who gets a title from a judgment-debtor pending attachment can set up that title against the attaching creditor or the auction-purchaser. The case in Gangayya v. Venkataramayya (1922) 44 M.L.J. 80 does not help the appellant. In that case the attaching creditor agreed for a consideration with the purchaser pending the attachment to release an item of the attached property and not to bring it to sale in execution of the decree.
9. The assignee of the decree with notice of the. agreement was held not entitled to proceed against the item of property agreed to be exempted from sale in execution. If in this case the defendant's predecessor-in-title had agreed to hold the property under the appellant's predecessor-in-title and executed to him an agreement, the matter would be different. No such agreement was executed and no contention is put forward that the defendant's predecessor-in-title ever agreed to hold the property as mortgagee of the appellant's predecessor-in-title.
10. Considerable argument was advanced to show that the word 'void' in Section 64 means only 'voidable'. It is unnecessary to consider this contention, for, whether it is void or voidable, it is immaterial for the present purpose. The auction-purchaser's clear right was to get possession of the property; but not having got possession of the property within the time allowed by law, he is not entitled to possession, and it is immaterial what the title of the present defendant is. If the claim of the auction-purchaser is barred against the judgment-debtor, it is equally barred against any person who claims under him.
11. Another contention put forward by Mr. Bhashyam Aiyan-ar is that this is a suit to redeem and, therefore, neither Article 137 nor 138 is applicable to the case. As I have already observed, the relationship of mortgagor and mortgagee never existed between the appellant and the defendant or their predecessor-in-title and, therefore, the plaintiff cannot redeem the property when it is not subject to a mortgage in his favour. When the auction-purchaser purchased the property he purchased it free of the mortgage and not subject to the mortgage. If he had bought it subject to the mortgage, the auction-purchaser would be entitled to redeem the property as he purchased only the equity of redemption. As already observed, what was sold in 1891 was not the equity of redemption but the property itself. Therefore the decision Tairamiya v. Shibeli Saheb I.L.R. (1919) B. 614 has no application to the present case Gopala Dasu v. Rami 41 M.L.J. 194 is not applicable as the defendant or his predecessor-in-title never held out that he was a mortgagee under the appellant's predecessor-in-title.
12. The appeal therefore fails and is dismissed with costs.