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Rao Sahib T. Namberumal Chettiar by His Agent C. Raghavaloo Naidu Vs. A.T. Raghava Chariar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in71Ind.Cas.390
AppellantRao Sahib T. Namberumal Chettiar by His Agent C. Raghavaloo Naidu
RespondentA.T. Raghava Chariar and ors.
Excerpt:
transfer of property act (iv of 1882), section 59, - evidence act (i of 1872), section 68--mortgage-bond--attesting witnesses--proof, mode of. - - if the second suit had been brought after an order absolute of the sale was obtained against the 1st, defendant in the first suit, then it is perfectly clear that the original cause of action would have been merged in the decree and that no subsequent suit could be brought against him;.....a suit for sale when they would have had to exercise their right of redemption or to allow fie suit properties to be sold, and in that way, the rights of the parties would have been fully worked out. what the plaintiff was advised to do was to obtain a stay of execution of the original side decree and to file a fresh suit in be district court of chingleput against the mortgagors of these items and, also, as regards some other items to join alienees subsequent to himself, with regard to whom he alleged that he did not know of their existence when he brought his suit in this court. here again it was unnecessary to bring another suit because, if the first decree had been executed, as the subsequent alienees were not parties to the suit they might, if so minded, have sued to redeem those.....
Judgment:

1. This litigation has taken a somewhat unfortunate course, but we feel bound to give effect to the clear legal principles which, in our judgment, apply to the case. The plaintiff obtained leave to institute a suit against the first defendant on a mortgage by the first defendant of certain properties, one of which was alleged to be within the original jurisdiction of this Court. Here, I may say in passing that it appears to us to make no difference whatever as to the jurisdiction of this Court whether or not the mortgagor bad a good title to the property situated within the jurisdiction of this Court, What he did was, he mortgaged his interest, such as it was, in immoveable property situated within the jurisdiction of this Court, and that, in our opinion, Was quite sufficient to give this Court jurisdiction to give leave. However, that is really not a question which arises here. The plaintiff obtained an ex parte decree against the first defendant and having apparently heard that the first defendant was not a full owner but a mortgagee of some of the items of the properties included in the mortgage, he apparently obtained from Mr. Justice Bakewell an order to insert in the decree a direction for an enquiry as to what was the interest of the mortgagor in the said mortgaged properties. In our opinion such an enquiry could only be for the purpose of settling the sale proclamation and in no way affected the right of the plaintiff decree-holder to proceed to the execution of his decree. If he had brought the properties to sale after that enquiry and either purchased them himself or any one else had purchased them, then that auction-purchaser could have proceeded to enforce his rights against the mortgagors of the first defendant as to those items by bringing a suit for sale when they would have had to exercise their right of redemption or to allow fie suit properties to be sold, and in that way, the rights of the parties would have been fully worked out. What the plaintiff was advised to do was to obtain a stay of execution of the Original Side Decree and to file a fresh suit in be District Court of Chingleput against the mortgagors of these items and, also, as regards some other items to join alienees subsequent to himself, with regard to whom he alleged that he did not know of their existence when he brought his suit in this Court. Here again it was unnecessary to bring another suit because, if the first decree had been executed, as the subsequent alienees were not parties to the suit they might, if so minded, have sued to redeem those items from the auction purchaser on suitable terms. If they did not choose to do so, the purchaser would remain undisturbed. There was, therefore, no necessity for the plaintiff to bring this second suit and there is no ground in law for his doing so. If the second suit had been brought after an order absolute of the sale was obtained against the 1st, defendant in the first suit, then it is perfectly clear that the original cause of action would have been merged in the decree and that no subsequent suit could be brought against him; and, even supposing that, as alleged for the appellant, the second suit was instituted before the making of the order absolute in the first, suit, still in our opinion, the provisions of Section 11, Civil Procedure Code, are sufficient to prevent the plaintiff from instituting a suit about an issue which had been tried and decided in a previous suit in this Court. The present suit, in our opinion, both as against the 1st defendant and as against the subsequent alienees against whom the auction-purchaser in the first suit will be entitled to enforce his remedies in execution of the decree in that suit, is entirely misconceived.

2. On this ground, the suit fails and the appeal must be dismissed with the costs of defendants Nos. 2 and 6 one set.


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