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Aravamuthu Iyengar Vs. Kumarasawmi Chetty - Court Judgment

LegalCrystal Citation
Decided On
Reported in5Ind.Cas.490
AppellantAravamuthu Iyengar
RespondentKumarasawmi Chetty
Cases ReferredManavikraman Ettam Thamburan v. Ammu
mortgage decree, construction of - decree obtained by second mortgagee--decree for sale subject to prior mortgage--purchase by decree-holder at court sale and delivery of possession to him--right to possession of purchaser of equity of redemption of first mortgage. - .....parties, and as we construe it, the appellant cannot succeed.3. we dismiss the appeal with.....

1. Having heard the appeal on the merits, we find it unnecessary to express any opinion on the preliminary objection that no appeal lies.

2. Rightly or wrongly the second mortgagee has obtained a decree for sale subject to the prior mortgage and we are unable to construe that decree as compelling the decree-holder to redeem the prior mortgage before taking steps to sell the property. The prior mortgagee was in possession not as mortgagee but as mortgagor (i.e.,) by virtue of his private purchase of the equity of redemption, and his right to possession as mortgagor passed by the sale to the plaintiff. The decision in Kasinatha Iyer v. Uthumansa Rowthan 25 M.k 529 proceeds on the construction of the decree in that case, and the case in Manavikraman Ettam Thamburan v. Ammu 24 M.k 471 depends on a consideration of the respective rights of the prior and puisne mortgagees: in the present case we are unable to go behind the decree which has determined the rights of the parties, and as we construe it, the appellant cannot succeed.

3. We dismiss the appeal with costs.

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