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Govindasamy Koundan Vs. Kandasamy Koundan and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in147Ind.Cas.839
AppellantGovindasamy Koundan
RespondentKandasamy Koundan and anr.
Cases Referred and Arunaehala Velan v. Venkatarama Ayyar
Excerpt:
civil procedure code (act v of 1908), order xxxiv, rule 6 - mortgage of several items--one of them transferred by mortgagor as free from incumbrance--mortgage decree without impleading transferee-- mortgagee's right to apply for personal decree before selling transferred item. - - in my opinion the lower court's view that in the circumstances the mortgagee can ask for a personal decree without selling the fourth item, is perfectly correct......should first bring to sale all the mortgaged items? in this case subsequent to the mortgage, the fourth item was sold by the mortgagor to a third party, who by some omission has not been impleaded as a party to the suit. further the mortgagor in conveying the fourth item to the aforesaid third party made a representation to him that it was free from encumbrance. the question is: is it open to him in the circumstances to insist that the mortgagee should proceed against the fourth item? in other words, is there any rule of law which compels ''.the court to permit the mortgagor to take advantage of his own wrong? in my opinion the lower court's view that in the circumstances the mortgagee can ask for a personal decree without selling the fourth item, is perfectly correct. the view i am.....
Judgment:

Venkatasubba Rao, J.

1. The mortgagee obtained a decree for sale of Jour items of property. He first brought to sale three of them and now applies for a personal decree. This is resisted by the mortgagor on the ground that the mortgagee is bound to exhaust his remedy in the first instance against the properties mortgaged. The question is: Is there any inflexible rule that the mortgagee should first bring to sale all the mortgaged items? In this case subsequent to the mortgage, the fourth item was sold by the mortgagor to a third party, who by some omission has not been impleaded as a party to the suit. Further the mortgagor in conveying the fourth item to the aforesaid third party made a representation to him that it was free from encumbrance. The question is: Is it open to him in the circumstances to insist that the mortgagee should proceed against the fourth item? In other words, is there any rule of law which compels ''.the court to permit the mortgagor to take advantage of his own wrong? In my opinion the lower Court's view that in the circumstances the mortgagee can ask for a personal decree without selling the fourth item, is perfectly correct. The view I am taking is not inconsistent with Periyaswami Kone v. Muthia Chettiar 23 Ind. Cas.515 : 38 M 677 : 15 MLT 232 and Arunaehala Velan v. Venkatarama Ayyar 51 Ind. Cas. 84 : 33 MLJ 93 : 9 LW 538 : 26 MLT 192, and on the contrary they support my view.

2. I may also point out that Mr. Muthuswami Ayyar, the learned Counsel for the respondent, undertakes not to proceed against the fourth item in the hands of the third party purchaser referred to above.

3. In the result, the second appeal is dismissed with costs.


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