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Kanakasabapathy Chetty Vs. Venkatarama Iyer and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in5Ind.Cas.339
AppellantKanakasabapathy Chetty
RespondentVenkatarama Iyer and ors.
Cases ReferredRamaswami v. Bagirathi Ammal
Excerpt:
mortgage decree - defendant entitled by decree in redeem a prior mortgagee--application for sale by decree-holder--representatives of deceased defendant not made party--sale liable to be set aside. - - 1. we agree with the district judge that the sale was bad because the representatives of the 5th defendant were not brought on record. k 90. 2. the former case is clearly distinguishable for there the order was merely an order for delivery of possession......sale was bad because the representatives of the 5th defendant were not brought on record. as the district judge observes, the 5th defendant and his representatives had the right to redeem the prior mortgage and retained that right until the sale had been held and the execution was complete. we have been referred to riyyakka v. fakira 12 m.k 211 and kunhammed v. kutti 12 m.k 90.2. the former case is clearly distinguishable for there the order was merely an order for delivery of possession. as to the latter decision, it is really against the appellant, for it distinguishes the case there under consideration from the case of ramaswami v. bagirathi ammal 6 m.k 180 in which no legal representative had been brought in and the sale was, therefore, set aside.3. the appeal is dismissed with.....
Judgment:

1. We agree with the District Judge that the sale was bad because the representatives of the 5th defendant were not brought on record. As the District Judge observes, the 5th defendant and his representatives had the right to redeem the prior mortgage and retained that right until the sale had been held and the execution was complete. We have been referred to Riyyakka v. Fakira 12 M.k 211 and Kunhammed v. Kutti 12 M.k 90.

2. The former case is clearly distinguishable for there the order was merely an order for delivery of possession. As to the latter decision, it is really against the appellant, for it distinguishes the case there under consideration from the case of Ramaswami v. Bagirathi Ammal 6 M.k 180 in which no legal representative had been brought in and the sale was, therefore, set aside.

3. The appeal is dismissed with costs.


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