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Sabapathi Boopathi and anr. Vs. Govindaraja Boopathy and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1970)2MLJ449
AppellantSabapathi Boopathi and anr.
RespondentGovindaraja Boopathy and anr.
Cases ReferredMulla Vittil Seethi v. Achuthan Nair
Excerpt:
- .....113-63 with interest thereon at 61/4 per cent. per annum from the date of the mortgage till the date of suit and thereafter at 6 per cent. per annum till date of payment for redeeming the suit item. in default of payment before 28th august, 1964, the plaintiff was held entitled to possession of the suit item from the defendants.4. the plaintiff took the matter in appeal to the lower appellate court and the defendants 1 and 2 filed cross-objections against the decree of the trial court so far as it was against, them. in the appeal, the lower appellate court agreed with l : he view of thy trial court that the suit was not barred by limitation but took a different view on the question whether the defendants are entitled to pay only a proportionate portion of the mortgage money as held by.....
Judgment:

G. Ramanujam, J.

1. One Nataraja Boopathi mortgaged the suit item along with two other items to the third defendant under a mortgage deed, Exhibit A-1 dated 27th May, 1939 for Rs. 300. The third defendant filed a suit O.S. No. 581 of 1957 on the mortgage and the same was decreed on 4th December, 1957. In execution of the said mortgage decree, the suit item was brought to sale and the plaintiff in O. S. No. 64 of 1963, purchased the same in Court auction on 28th March, 1962, and a sale certificate was issued to him on 30th May, 1962. When the plaintiff sought to recover possession of the suit property in pursuance of the sale certificate, there was obstruction by defendants 1 and 2 on 8th August, 1962 and the plaintiff filed M. P. No. 656 of 1962 on 24th August, 1962 for removal of obstruction. But the said petition was dismissed on 28th November, 1962, on the ground that the defendants were in possession of the suit property as purchasers of the equity of redemption from the original mortgagors by a sale deed Exhibit B-1 dated 25th May, 1947 and that the mortgage decree obtained against the original mortgagors without impleading defendants 1 and 2 was not binding on them. Hence the plaintiff was constrained to file the present suit for setting aside the summary order dated 28th November, 1962, passed in M. P. No. 656 of 1962 in O. S. No. 581 of 1957 and for directing defendants 1 and 2 to deposit a sum of Rs. 850 being the auction purchase amount paid by him for the suit item and in default of payment of the said sum by the defendants 1 and 2 for delivery of possession of the suit item.

2. Defendants 1 and 2 resisted the suit on the ground that the suit was barred by limitation, that the mortgage decree in O. S. No. 581 of 1957 was not binding on them and that in any event they were entitled to redeem the mortgage on payment of the proportionate amount of the mortgage money.

3. The third defendant was the mortgagee and he contended that he did not add the first defendant as a party in O. S. No. 581 of 1957 as he was not aware of the purchase made by him from the mortgagors and that he was an unnecessary party to the suit. On these facts, the learned District Munsif of Tandivanam held that the suit was not barred by limitation, that the plaintiff will be entitled to recover from defendants 1 and 2 only a sum of Rs. 113-63 being the proportionate amount of the mortgage money as per the value of the mortgaged items on the date of the mortgage and not the entire mortgage amount. In the result he decreed the suit. He set aside the summary order in M. P. No. 656 of 1962 and directed defendants 1 and 2 to deposit Rs. 113-63 with interest thereon at 61/4 per cent. per annum from the date of the mortgage till the date of suit and thereafter at 6 per cent. per annum till date of payment for redeeming the suit item. In default of payment before 28th August, 1964, the plaintiff was held entitled to possession of the suit item from the defendants.

4. The plaintiff took the matter in appeal to the lower appellate Court and the defendants 1 and 2 filed cross-objections against the decree of the trial Court so far as it was against, them. In the appeal, the lower appellate Court agreed with l : he view of thy trial Court that the suit was not barred by limitation but took a different view on the question whether the defendants are entitled to pay only a proportionate portion of the mortgage money as held by the trial Court. Before the lower appellate Court an objection was taken by the defendants to the effect that the suit as framed was not maintainable and that the same was liable to be dismissed in limine'. The lower appellate Court dealing with the questions to the maintainability of the suit as framed, has relied on a decision of this Court in Sambasiva Ayyar v. Subramania Pillai I.L.R.(1936) Mad. 312, and has taken view that the suit as framed was maintainable. The lower appellate Court in the result, allowed the appeal and decreed the suit in entirety as prayed for with costs throughout. As a result of the decision of the lower appellate Court, now there is a decree in favour of the plaintiff setting aside the summary order dated 28th November, 1962, directing defendants 1 and 2 to pay the plaintiff a sum of Rs. 850 before 23rd January, 1966, and in default of such payment by defendants 1 and 2 to put the plaintiffs in possession of the properties. The defendants question the correctness of the decree and judgement of the lower appellate Court in this second appeal.

5. The learned Counsel for the appellants (defendants 1 and 2 ) made a threefold attack against the decision of the lower appellate Court. He urged (1) that the suit as framed is not maintainable at all; (2) that the suit even if maintainable was barred by limitation, and (3) that in any event the appellants are liable to pay only a proportionate amount of the mortgage money and not the entire amount (if the purchase money paid by the plaintiff as an auction purchaser.

6. Dealing with the maintainability of she suit, the learned Counsel for the appellants took me through the prayer in the plaint and submitted that though the suit is framed as one to set aside a summary order, in effect it is a suit to get back the sum of Rs. 850 which the plaintiff paid as Court auction purchaser. It was pointed out 1 hat the suit is not specifically for recovery of the mortgage money and that such a suit as the present one cannot be maintained as against the defendants who had purchased she equity of redemption long before the mortgage suit. It is contended that if she suit is treated as one for possession by the Court auction, purchaser such a suit against the purchaser of the equity of redemption who has not been made a party in the mortgage suit cannot be maintained as the Court cannot grant the relief of possession even subject to she right of redemption of defendants 1 and 2. He referred to she decision of the Full Bench in Mulla Vittil Seethi v. Achuthan Nair : (1911)21MLJ213 , where the first mortgagee who had purchased the mortgaged property in execution of a decree on his mortgage sought possession against the subsequent mortgagee with possession, who was not impleaded in the first mortgagee's original suit, and the Full Bench held that the plaintiff in that case was not entitled to a decree for possession even subject to he puisne mortgagee's right of redemption. The Full Bench on a full review of the decided cases on the point laid down the following propositions:

(1) A second mortgagee is entitled to the same rights as the first mortgage with reference to his security, having regard to he nature of his mortgage.

(2) The purchaser of the equity of redemption after the first mortgagee and the second mortgagee both stand on he same footing with reference to (heir respective rights against he first mortgagee when they have not been impleaded in the suit instituted by him on his mortgage.

(3) Those rights are unaffected by the suit of the first mortgagee to which they are not made parties and the decree passed therein and the sale made in pursuance thereof.

(4) The purchaser in such a suit, whether it is a first mortgagee or a stranger, does not acquire the rights of the mortgagor as at the date of the first mortgage but only those that subsist in him at the date of the suit.

Basing himself on this decision, (he learned Counsel for the appellant says that he plaintiff in he present case will not be entitled to a decree for possession even subject to he right of redemption of defendants 1 and 2 and that the Courts below were in error in granting a decree for possession to the plaintiff in default of the defendants' redeeming the mortgage.

7. According to the learned Counsel, even if the suit is otherwise maintainable the only remedy open to the plaintiff in the circumstances of this case is to bring the property to sale if defendants 1 and 2 did not choose to redeem the mortgage. The view of the Full Bench shat the redemption is a right which he puisne mortgagee may seek to enforce against he earlier mortgagee and not a liability which he may be compelled to discharge on pain of losing possession and that if he is unwilling to redeem, he cannot be deprived of his present right to be in possession, is pressed into service. The further observation of the Full Bench that the purchaser in a mortgage suit, whether he is a first mortgagee or a stranger, does not acquire rights of the mortgagor as on the date of the first mortgage, but only (hose hat subsist in him on the date of he suit, are also relied on in support of the stand that the plaintiff who is a stranger-purchaser in the mortgage action can get only such rights as he mortgagor had on the date of the sale, 1 hat the mortgagor had sold equity of redemption to defendants 1 and 2 and parted with possession of the suit item in their favour and that as such, the plaintiff in the present suit cannot straightaway dislodge their possession on the basis of his Court auction purchase.

8. The learned Counsel next contends that if the suit is treated as one to enforce an. undertaking given by defendants 1 and 2 to discharge he mortgage in Exhibit B-1 dated 25 th May, 1947, then the decision of he Privy Council in Jamna Das v. Pandit Ram (1911) 21 M.L.J. 1158 : 39 L.R. IndAp 7 : I.L.R. 34 All. 63, will stand in their way. In (hat case, an action brought by a mortgagee to enforce against ' he purchaser of the mortgaged property an undertaking that he had entered into with his vendor to pay the mortgage money was held not maintainable on the ground that there is no privity between he purchaser and the mortgagee and that as such he mortgagee, who was not a party to the sale, cannot enforce a covenant entered into between the mortgagor and the purchaser.

9. I am inclined to agree with 'he learned Counsel for the appellants that the present suit, if it were to be treated as a suit for possession, or a suit to enforce the undertaking given by he first defendant to discharge he mortgage while purchasing the property he same cannot be maintained in view of the above decisions. The Supreme Court in Nagu Bai Ammal v. Shavia Rao : [1956]1SCR451 , dealing with the effect of the mortgagee decree obtained without impleading the persons owning the equity of redemption expressed as follows after referring to a passage from the judgment of Sir John Romilly, Wood v. Surr (1854) 19 Beav. 551 : 52 E.R. 465:

These observations directly cover the point now in controversy and they embody a principle adopted in the law of this country as to the effect of a sale in execution of a decree passed in a defectively constituted mortgage suit. Such a sale, it has been held does not affect the rights of redemption of persons interested in the equity of redemption who have not been impleaded as parties to the action as they should have been under Order 34, Rule 1, Civil Procedure Code, but that it is valid and effective as against parties to the action.

10. The Full Bench in Mulla Vittil Seethi v. Achuthan Nair : (1911)21MLJ213 , has also laid down the same principle that the rights of the purchaser of the equity of redemption are unaffected by he suit of the mortgagee to which he was not made a party and that the decree passed therein will not affect the right of redemption inhering in i he purchaser of equity of redemption. Of course it is well settled that the Court auction purchaser can enforce his rights in two capacities, that is, as a right qua purchaser as well as a right qua mortgagee as against a purchaser of the equity of redemption who was not impleaded as a party to the mortgage action. The Division Bench in Sambasiva Ayyar v. Subramania Pillai I.L.R.(1936) Mad. 312, dealing with these two capacities of the Court auction purchaser expressed that if the Court auction purchaser files a suit on the foot of the original mortgage in his capacity as mortgagee, he could sue for the whole of the mortgage amount impleading besides the mortgagor, he purchaser of the equity of redemption in the mortgaged property, that in such a suit the purchaser of equity of redemption will be entitled to redeem the whole of the mortgage debt though he had purchased only a few of the items mortgaged, but that the cause of action for such a suit would date from the date of the mortgage. If the Court auction purchaser files a suit in his capacity as purchaser, he will not be entitled to sue for the whole of the mortgage debt but only for the proportionate amount to which the items purchased were liable and the purchaser of equity of redemption will have the right to redeem his items by paying the proportionate amount for which the items purchased by him were liable. In such a case the cause of action could not be earlier than the date of purchase and the cause of action would date from the date of obstruction to his possession.

11. Though the Courts below referred to the said decision in Sambasiva Ayyar v. Subramanie Pillai I.L.R.(1936) Mad. 312, it is found that they have not properly appreciated the scope of the decision and its applicability to the facts of the present case. On the facts of this case, the plaintiff who is the Court auction purchaser in the mortgage suit has not come forward to sue either for the whole of the mortgage amount or for the proportional amount of the mortgagee money to which the suit item purchased by the first defendant would be liable. The present suit is one for recovery of a specified sum of Rs. 850 paid by the plaintiff as purchase price in the Court-auction and it cannot be construed as a suit for recovery of the mortgage money in whole or in part, and the principle laid down by the division bench in Sambasiva Ayyar v. Subramania Pillai I.L.R.(1936)Mad. 312 cannot be applied at all. The Courts below have proceeded on he basis that (he suit claim is one to recover the mortgage money either in whole or in part, which is not the case. The original mortgage amount was Rs. 300 and the sum of Rs. 850 claimed has no relation to the mortgage amount due under Exhibit A-1, when this was pointed out to the learned Counsel for the plaintiff (respondent), he submitted that the suit has been filed specifically to give an opportunity for the defendants to redeem the mortgage and that if they do not choose to redeem the mortgage, the plaintiff is entitled to possession straighaway by virtue of his purchase in execution of the mortgage decree. The submission overlooks the Full Bench decision in Mulla Vittil Seethi v. Achuthan Nair : (1911)21MLJ213 , where it has been specifically ruled that the Court auction purchaser will not be entitled to possession even subject to the right of redemption of the purchaser of equity of redemption who has not been made a party to the mortgage suit and the categorical observation in that judgment that the right of redemption is a right which the purchaser of the equity of redemption may seek to enforce but not a liability which he may be compelled to discharge on pain of losing possession. Further the submission of the learned Counsel for the plaintiff (respondent) runs counter to the reliefs sought for in the plaint. The suit cannot be treated as a suit to recover mortgage money. The plaintiff specifically seeks recovery of the sum which he paid at the Court-auction and not any portion of the mortgage money. On the facts of this case, I have to hold that the suit as learned is not maintainable.

12. The learned Counsel for the appellants contended that even if the suit as framed is maintainable it will be barred by limitation as the cause of action will date from the date of the original mortgage and not from the date of the Court auction purchase or the date of obstruction to his possession and that the decision in Sambasiva Ayyar v. Subramania Pillai (1936) I.L.R. 59 Mad. 312, laying down the proposition that the period of limitation will start from the date of the Court auction purchase in a suit filed by the Court auction purchaser in his capacity as purchaser and not as a mortgagee requires reconsideration. He also cited before me the decisions in Ganapat Rama v. Timmayya Narayan A.I.R. 1942 Bom. 146, and Kumaraswami Pillai v. Subramania Iyer A.I.R. 1955 T.C. 152, where the decision in Sambasiva Ayyar v. Subramania Pillai I.L.R.(1936)Mad. 312, was not accepted as laying down the correct-proposition of law. The learned Counsel also submitted that the earlier decisions of this Court in Mulla Vittil Seethi v. Achuthan Nair : (1911)21MLJ213 , Chandramma v. Gunna Seethan A.I.R. 1931 Mad. 542 : 61 M.L.J. 316, and Nagendran v. Lakshmi A.I.R. 1933 Mad. 583 : 65 M.L.J. 108, did not support the view taken by the Division Bench in Sambasiva Ayyar v. Subramania Pillai I.L.R.(1936)Mad. 312. It is not necessary for me to express any opinion on the point as to limitation and the alleged conflict between the decision in Sambasiva Ayyar v. Subramania Pillai I.L.R.(1936) Mad. 312, and the earlier decisions beginning from Mulla Vittil Seethi v. Achuthan Nair : (1911)21MLJ213 , in view of the fact that I am upholding the contention of the learned Counsel for the appellant that the suit as framed is not maintainable.

13. The plaintiff has not come forward with a suit for recovery of the mortgage money and the application of Article 132 of the Limitation Act is misplaced as the present suit is not one for mortgage money.

14. In the result, I allow the second appeal and set aside the decree and judgments of the Courts below. The plaintiff's suit will stand dismissed with costs throughout. Leave granted.


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