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Rama Aiyar Vs. A.L. Palaniappa Chetty and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported in(1911)21MLJ756
AppellantRama Aiyar
RespondentA.L. Palaniappa Chetty and ors.
Cases Referred and Mahibir Pershad Singh v. Macnaghten I. L. R.
Excerpt:
- - 2. one of the issues raised in the suit was whether the mortgage was bad because the provisions of section 257-a of the code had not been complied with. 23, 24 and 25 to raise the question of the validity of the mortgage with reference to the provisions of section 257-a, because they failed to bring a suit within one year from the order made in the claim proceedings. and as regards the policy of the section 1 fail to see that the circumstances of this case give the appellant any special claim for consideration. i think, therefore, the points which have been taken fail......that the mortgage was impeached on the grounds i have stated, the claim of the mortgagee was upheld. defendants nos. 23 and 24 became the purchasers at the court sale held under the order made in the proceedings under section 278; they afterwards assigned their rights to the 25th defendant who is the appellant before us. now the present suit is by the mortgagee, and he seeks to recover the money due to him from the mortgagor by sale of the mortgaged property. the 25th defendant seeks to impeach the validity of the mortgage.2. one of the issues raised in the suit was whether the mortgage was bad because the provisions of section 257-a of the code had not been complied with. the court of first instance held it was. the matter came before this court on appeal, and with regard to this.....
Judgment:

Arnold White, Kt., C.J.

1. The question which we have to decide in this appeal is whether it is open to the appellant to impeach the validity of the mortgage on which the suit is brought. The question arises in this way. The suit is by the mortgagee. The 1st defendant is the mortgagor. Defendants Nos. 23 and 24 held a money-decree against the mortgagor, and they attached the mortgaged property. The mortgagee put in a claim under Section 278 of the Civil Procedure Code. The mortgagor was not a party to those proceedings. On the hearing of that claim the mortgage was attacked by defendants Nos. 23 and 24 on two grounds. It was attacked on the ground that it was invalid because the provisions of Section 257-A of the Code had not been complied with, and on the ground that it was a sham. Notwithstanding that the mortgage was impeached on the grounds I have stated, the claim of the mortgagee was upheld. Defendants Nos. 23 and 24 became the purchasers at the court sale held under the order made in the proceedings under Section 278; they afterwards assigned their rights to the 25th defendant who is the appellant before us. Now the present suit is by the mortgagee, and he seeks to recover the money due to him from the mortgagor by sale of the mortgaged property. The 25th defendant seeks to impeach the validity of the mortgage.

2. One of the issues raised in the suit was whether the mortgage was bad because the provisions of Section 257-A of the code had not been complied with. The court of first instance held it was. The matter came before this Court on appeal, and with regard to this question this Court took a different view from that of the court of first instance and held that Section 283 barred the rights of defendants Nos. 23, 24 and 25 to raise the question of the validity of the mortgage with reference to the provisions of Section 257-A, because they failed to bring a suit within one year from the order made in the claim proceedings. They held against the 23rd and 24th defendants on the contention which they raised that they were entitled on the ground of minority to escape the operation of this provision of the law of limitation.

3. Now it is conceded by Mr. Ananthakrishnier, who argued this appeal on behalf of the appellant, that the grounds of the decision of this court, to which I have just referred, are equally applicable to the question which we have to consider here, that is to say, the question whether the appellant is entitled to impeach the mortgage with reference to the provisions of Section 257-A, and on the ground that it is a sham. The parties against whom the order referred to in Section 283 of the Code of Civil Procedure was made were this judgment-creditors of the mortgagor (defendants Nos. 23 and 24), and the 25th defendant derived his title by assignment from them. The contention on behalf of the appellant was that, although the order was made against the parties from whom the 25th defendant derived his title inasmuch as these parties were the purchasers at court auction, the appellant had become relieved of the disability imposed by the provisions of Section 283 of the Civil Procedure Code and. clothed himself with all the rights of the judgment-debtor. One of these rights was the right to say : 'As I was not a party to the claim proceedings, I am not bound thereby.'

4. Now that is the argument which is advanced by the appellant, audit seems to me it cannot be supported on principle or by authority. The policy of the section is clear It is stated in the case to which Mr. Ramachandra Aiyar referred, i.e., Sardhari Lal v. Ambika Prashad I. L. R. (1888) C. 521, that the object to be secured was speedy settlement of the questions of title raised in execution. And as regards the policy of the Section 1 fail to see that the circumstances of this case give the appellant any special claim for consideration. It may be that the auction-purchaser is the representative of the judgment-debtor and not the decree-holder, but that is a proposition which can only be accepted subject to certain limitations. I need only refer to the decisions in Sandhu Targanar v. Hussain Sahib I. L. R. (1904) M. 87 and Krishna Satapasti v. Saraswatula Sambasiva Rao I. L. R. (1908) M. 177. The proposition, as it seems to me even if we accept it, can have no application to a case where the parties against whom the order was made under the claim proceedings are the identical parties who claim to have the benefit of standing in the shoes, of the judgment-debtor. They are more or less the parties against whom the order was made because they have the right to say (assuming they have the right) 'we stand in the shoes of the judgment-debtor.'

5. Coming to the decision of the Full Bench in Krishnasawmi Naidu v. Somasundaram Chettiar I. L. R. (1906) M. 335, what was held there (so far as is material to the question we have to consider) was that the judgment-debtor who is not in fact a party to the claim proceedings does not in the eye of the law become such by reason solely of his being the judgment-debtor. That does not help the appellant.

6. We were also referred to the decision in Vadapalli Narasimham v. Dronam Raju Seetharama Murthi I. L. R. (1907) M. 163, There, following the principle of the decision of the Full Bench, it was held that the claim under Section 281 was not conclusive against, or in favour of, the judgment-debtor under Section 283 of the Code unless he was a party to the proceedings in which the order was passed. The other case - Guruva v. Subbarayudu I. L. R. (1890) M. 366 - certainly does not help the appellant because, as it seems to me, it does not carry him so far as the decision of the Full Bench. Then with regard to the other two cases - Mahomed Mira Ravuthar v. Sawasai Vijaya Ragunatha Gopalar I. L. R. (1899) M. 227 and Mahibir Pershad Singh v. Macnaghten I. L. R. (1889) C. 682 - I think neither of these authorities supports the proposition which Mr. Anantakrishnier asked us to accept. So much for the first point.

7. The second point is this. It is said that, assuming that the appellant is estopped because the defendants Nos. 23 and 24 are estopped, the order on the claim petition is not au adjudication as regards the question of the validity of the mortgage. It is argued that the order in the claim proceedings merely determines the question of physical possession and does not determine, and was never intended by the legislature to determine, any question of title. Now if we turn to Section 283 of the Civil Procedure Code we find the words 'the party against whom an order under Section 280, 281 or 282 of the Civil Procedure Code is passed may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive' Surely that means the order with reference to the right to claim the property in dispute and not the order with reference to the fact as to whether A or B was in physical possession at the time the order was made. If we turn to the order made by the learned Judge in the claim proceedings, it becomes clear that on one side the title under the mortgage was asserted and on the other side the title under the mortgagor was denied on the ground that the mortgage was fraudulent. And the learned Judge holds - I quote his language - 'I must hold, therefore, that Exhibit C has been executed for consideration, notwithstanding that the date of Exhibit C compared with the dates referred by the counter-petitioners' vakil in connection with their suit against Chockalinga Pillai seems to show that Exhibit C was executed in that connection. In holding that Exhibit C is a genuine document I also consider the evidence relating to possession which I am going to refer to.' The learned Judge adjudicates upon this very question in his order, although it is true that the actual words of his final order are : 'That, however, does not interfere with the finding to which I now come, that Palaniappa Chetty is in possession of the property mortgaged to him by Exhibit C.' I think that must be taken as to whether he was in possession as the party entitled to possession, that is to say, impossession by reason of the mortgage which he set up as the basis of his claim. I think, therefore, the points which have been taken fail.

8. As regards the merits, Mr. Ananthakrishnier did not think it necessary to contest the finding of the lower court.

9. The result would be that the appeal is dismissed with costs.

Ayling, J.

10. I agree.


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