1. The petition arises from the sale of a house by the Corporation of Madras for arrears of property tax due upon it, in the enforcement of the first charge given to the Corporation by Section 103 of the Madras City Municipalities Act. After the arrears of tax had been met, there remained a surplus of Rs. 1,250. The petitioner before me is the auction-purchaser who made a claim in the City Civil Court for the refund of this money to her on the allegation that the house had been mortgaged to her. The original defaulter is dead; two of his legal representatives supported the petitioner's claim, one of them (3rd defendant in the suit) contested it on the ground that the alleged mortgages in the petitioner's favour were nominal. The learned Additional City Civil Judge dismissed the claim on the ground that by the purchase petitioner's mortgages had ceased to exist, and therefore she had no locus standi to ask for the money. Other matters in issue were left undecided.
2. In the present petition, the petitioner who seems to have relied in the lower Court upon Section 101 of the Transfer of Property Act in an attempt to convince the Court that her mortgages had not merged, maintains that she has an undoubted right to this money under Section 73 of the same Act. It is perhaps not altogether an easy question to answer whether if Section 73 applies to this sale, petitioner would be precluded from taking advantage of it by the fact that she combines in her own person the capacities of both purchaser and mortgagee. But in my opinion Section 73 from its very language, can apply only to sales in which property is sold free of all mortgages. Section 103 does not give the Corporation the right to sell property free of encumbrances as is given for example by Section 42 of the Revenue Recovery Act. In the present case, the Corporation has filed an ordinary suit, to which petitioner was not a party, and has proceeded to sell the property on a proclamation which makes no mention of any mortgage at all. The sale cannot therefore affect the rights of any mortgagee or transform them into the lesser rights granted by Section 73. If the petitioner thought as she probably did, that the sale was being held free of her mortgages, she has unfortunately misconceived the true position. I am of opinion accordingly that petitioner cannot rely upon Section 73 and that this petition must be dismissed with costs of the contesting respondent.