(1) This appeal filed in forma pauperis arises out of a suit for redemption instituted by the appellant, the fourth son of one Srinivasachari. The latter inherited considerable properties from his own father who bore the same name. The family was indebted even at the time of the appellant's grandfather, who, during his lifetime, had executed two mortgages Exs. B. 31 and B. 4 over the suit properties. On 23-5-1925, the appellant's father and his nephew executed a mortgage over the suit properties, Ex. A. 3, in favour of Vaitheeswara Aiyar and Govinda Aiyar to secure a sum of Rs. 27, 350. It is not disputed that the money raised under that mortgage went in for necessary purposes of the family. The mortgagors executed on 29-9-1919, Ex. B. 13, a sale of almost all their properties in favour of one Balakrishna Mudaliar, directing the vendee to discharge the mortgage under Ex. A. 3; but the vendee failed to do so. The mortgagee under Ex. A. 3 instituted on 16-3-1927 a suit, O. S. No. 59 of 1927, for sale of the mortgaged properties. To that suit the appellant's three brothers, who were alone then in existence, were made parties. A preliminary decree was passed on 14-12-1927 for a sum of Rs. 73,854. A final decree followed on 22-10-1928. By way of interlude, we may now mention that the earlier mortgages Exs. B.31 and B. 4 formed the subject-matter of the suit for sale in O. S. 140 of 1927 on the file of the lower court. Beyond obtaining a preliminary decree, the creditor appears to have done nothing in the matter and we are not therefore concerned with those mortgages in this litigation.
(2) To resume the facts relevant to the present case, the mortgagee decree-holder in O. S. 59 of 1927 brought up for sale and purchased the mortgaged properties for a sum of Rs. 59,200 leaving a portion of the decree still unsatisfied. The sale took place on 17-7-1929. The auction purchaser obtained delivery of possession.
(3) The appellant claiming that he was born on 20-9-1929, filed on 19-9-1950 the suit, out of which the present appeal arises, for redemption. He alleged that as the vendee under Ex. B. 13 had failed to pay the consideration for the purchase, the appellant's family (vendors) had a statutory charge for the unpaid purchase money on the properties sold and the members thereof would be in the position of puisne mortgagees. They would therefore be said to be entitled to redeem Ex. A. 3. The contention of the appellant further is that as he was afforded no opportunity to redeem the mortgage which should be deemed to subsist in the circumstance of this case, his present suit for redemption should succeed. It will be noticed that the appellant, even according to his own case, had not even been born till two months after the date of the Court sale. But it has been argued that as he, even before the date of sale, was in his mother's womb, he would be entitled to redeem the mortgage. The learned Subordinate Judge rejected this contention; he held also that the appellant's suit must fail on certain other grounds which are not now material to consider.
(4) It is not the appellant's case that either the debt evidenced by Ex. A. 3 was not one incurred for necessary purposes or that the proceedings in O. S. 59 of 1927 were conducted otherwise than bona fide. Therefore, even if one were to assume that the appellant had certain rights in the mortgaged properties which after his birth, he could assert, his claim would have to fail on the short ground that his father sufficiently represented him in the mortgage suit. The sale held in pursuance of the decree in that suit will have the effect of firstly putting an end to the right of redemption till then existing in the mortgagee or in the puisne mortgagee. Assuming even, that the appellant was in existence on the date of sale, he would have no right to question the sale now. Still less can be claim a right of redemption when at the time of sale he was not in existence. This is clear even from the decision in Muthuraman Chetti v. Ettappa Sami, ILR 22 Mad 372 on which considerable reliance has been placed by the learned counsel for the appellant. Shephard J. observed:
"In particular it was urged that as he was in existence before the application for sale was made, he ought to have been made a party or had notice of it and could not otherwise be prejudicially affected by the sale. Assuming that the decree directed a sale of the annuity, I do not think the plaintiff, as son of the judgment-debtor, born after the date of the decree but before the sale, could question the sale."
It has been argued that as in the present case, it was the decree-holder that purchased the mortgaged property at the court sale, he should be held to have acquired title to the property purchased only subject to the rights of the appellant, who must be deemed to have been in existence on the date of sale. We are, however, unable to follow the contention. The mortgagee impleaded in his suit all those persons who were interested in the equity of redemption on the date of suit. The appellant was not born till long after that date. The suit having been properly constituted any decree passed on it will bind the persons acquiring an interest in the mortgaged property subsequent to the date of suit. Once a decree has been passed, the court will be entitled to execute the same so as to bind the interests of even those who subsequently acquired an interest in the equity of redemption. It will not be obligatory on the part of the decree-holder, apart from the provisions of O. XXI Rule 22 C. P. C. to issue notice of execution to such persons. This principle will apply with greater force in the case of persons like the appellant who were not in actual existence then. No decree-holder can be expected to anticipate the birth of sons in the family of his debtors and provide for their representation in the execution proceedings.
(5) Learned counsel for the appellant invited our attention to certain decisions for establishing the proposition that the right of redemption being an incident of a subsisting mortgage, it should subsist so long as the mortgage itself subsists. We are, however, unable to see how that proposition can at all help the appellant in the present case, where the question is whether the mortgage itself subsists or not. A right of redemption will be extinguished as provided for in S. 60 of the Transfer of Property Act, by a sale in execution of a mortgage decree. When once that right of redemption has been extinguished, there would be no scope for any redemption.
(6) Learned counsel for the appellant tried to derive support for his contention from certain observations contained in ILR 22 Mad 372. In that case, there was no mortgage decree. In a suit upon a bond, a decree was obtained which contained the provision that provision that the mortgaged properties should be liable to be proceeded against for the amount due. This was not in conformity with S. 99 of the Transfer of Property Act, which corresponds to O. XXXIV Rule 14 C. P. C. That provision prevented a mortgagee from selling the mortgaged property in execution of a money decree otherwise than by instituting a mortgage suit. The prohibition was irrespective of the question whether the claim under the decree arose out of the mortgage or not. Order XXXIV Rule 14 C. P. C. however has restricted that disability to cases where the mortgage obtains a personal decree on the mortgage debt and then seeks to realise the decree amount by attachment and sale of the mortgaged property.
In the case above cited, the court held on a construction of the decree that it did not amount to a mortgage decree. After the date of the decree and before the date of sale a son was born to the mortgagor. He instituted a suit to set aside the sale or in the alternative for a declaration that it did not affect his rights to the property mortgaged. It was held that inasmuch as the decree was not one for sale under the mortgage, the execution proceedings must be deemed to have been conducted as on an attachment under a money decree and that therefore it contravened the provisions of S. 99 of the Transfer of Property Act. Such a sale being void, as against person affected the plaintiff in that suit was held entitled to assert his rights to the mortgaged property. We are unable to see how that decision can at all be relevant to the present case, where there is a mortgage decree. As we pointed out earlier, it was recognised in that case that if there was in fact a decree for sale, the plaintiff as the son of the judgment debtor, born after the date of the decree though before the date of sale, could not question it and no right of redemption would be left to him after the sale.
(7) Mr. Champakesa Aiyangar for the appellant then referred us to the following passage in the judgment of Kindersley V. C. in Faulkner v. Equitable Reversionary Interest Society, (1858) 28 LJ Ch 132 (137) as extracted in Govindarajam Pillar v. Alagappa Chettiar, 1943-1 Mad LJ 477: (AIR 1943 Mad 202):
"A mortgagee has his rights; he has a beneficial interest, and that interest is the realising of his security; in other words, getting paid his mortgage money principal, interest and any costs he may incur-that is his right; but this court will not allow him to exercise that right, without due consideration of the interest of the mortgagor, and undoubtedly the interest of the mortgagor, to which, in my opinion, the mortgagee is bound to attend, requires that the sale shall take place as beneficially to the mortgagor as if the mortgagor were himself the party."
These observations were made with reference to a case where the mortgagee sold the property by exercising the power of sale vested in him under the document of mortgage. They cannot apply to the case of a suit filed under the provisions of O. XXXIV Rule 1 C. P. C. In the latter case, if the pastries having an interest in the equity of redemption have all been impleaded, their right of redemption would cease to exist after a decree for foreclosure or on a sale being made under a decree in the mortgage. It will not be open to persons who have acquired an interest in the property subsequent to the suit to question the validity of the execution proceedings. The decision in 1943-1 Mad LJ 477: (AIR 1943 Mad 202) on which reliance has been placed turned upon the question whether a mortgagee decree-holder, who secretly purchased the mortgaged property at a revenue sale could be deemed to have contravened the provisions of Order XXXIV Rule 14 C. P. C. or could be held to hold the property for the benefit of the judgment-debtor on the principle of S. 90 of the Indian Trusts Act. It was held that the purchase by the mortgagee at the revenue sale will be valid. In our opinion, the appellant in the instant case not being in actual existence at the time of the sale in question, the court sale will be binding on them with the result that the relationship of mortgagor and mortgagee ceased to exist thereafter. Therefore, his suit for redemption cannot lie.
(8) The appeal fails and is dismissed with costs. The court fee due to the Government will be paid by the appellant.
(9) Appeal dismissed.