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Seshan Pattar and ors. Vs. Yakkanath Easwaran Unni Avergal Styled Ayini Pulli Raman Kumaran and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in9Ind.Cas.940a
AppellantSeshan Pattar and ors.
RespondentYakkanath Easwaran Unni Avergal Styled Ayini Pulli Raman Kumaran and ors.
Cases ReferredVedapurathi v. Avara
Excerpt:
mortgage - redemption--melchert--suit for redemption--transfer of property act (iv of 1882), section 92--appeal for value of improvements--mortgage-deed--representative not brought on record--appeal liable to be dismissed. - .....the date of his death. his representatives have not been brought upon the record.2. a preliminary objection is taken that the appeal is liable to be dismissed as the mortgagor is not a party to the appeal. we think the objection is well-founded. the appeal of the 1st mortgagee is to enhance the amount recoverable from the mortgage property and it they succeed in the appeal the property which belongs to the jemni, whose representatives have not been brought upon the record, is liable to be sold for the larger amount which the appellants claim. we must hold that the representatives of the mortgagor not having been brought on the record, the appeal is bad and cannot be prosecuted, see vedapurathi v. avara 25 m. 568. we dismiss the appeal with cists.3. the memorandum of objections is.....
Judgment:

1. This is a suit for redemption. The first plaintiff was the jemni and the second plaintiff melcharatdar or second mortgagee. A decree was passed by the Subordinate Judge for redemption in favour of the second plaintiff. A further direction was made that if the second plaintiff failed to pay the amount specified within the period provided in the decree the mortgaged property was to be sold. This direction for sale is in accordance with the provisions of Section 92 of the Transfer of Property Act. Defendants Nos. 1 to 8 have preferred this appeal claiming a larger amount by way of compensation for improvements than was allowed by the decree of the original Court. Since the appeal was filed, the first plaintiff the jemni has died. It is said two years and a half have elapsed since the date of his death. His representatives have not been brought upon the record.

2. A preliminary objection is taken that the appeal is liable to be dismissed as the mortgagor is not a party to the appeal. We think the objection is well-founded. The appeal of the 1st mortgagee is to enhance the amount recoverable from the mortgage property and it they succeed in the appeal the property which belongs to the jemni, whose representatives have not been brought upon the record, is liable to be sold for the larger amount which the appellants claim. We must hold that the representatives of the mortgagor not having been brought on the record, the appeal is bad and cannot be prosecuted, see Vedapurathi v. Avara 25 M. 568. We dismiss the appeal with cists.

3. The memorandum of objections is also dismissed with costs.


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