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Atmakur Chinna Chenchayya and ors. Vs. Khanda Kondiah and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in85Ind.Cas.454
AppellantAtmakur Chinna Chenchayya and ors.
RespondentKhanda Kondiah and ors.
Cases ReferredGnanambal v. Parvathi
Excerpt:
civil procedure code (act v of 1908), section 11 - res judicata--finding in proceeding between decree-holder and judgment-debtor, whether binding on subsequent decree-holder. - .....originally the property belonged to the 3rd defendant, but he made a gift of it in 1912 to one veera reddi alias musali reddi. the donee then mortgaged the property by way of simple mortgage to defendants nos. 1 and 2. it would seem that, on a former occasion, this property was attached as the property of the 3rd defendant by another decree-holder, one subbarayudu. at that time both veera reddi and the present defendants nos. 1 and 2 put in separate claim petitions urging their different interests in the property. as regards the 1st and 2nd defendants, their claim was allowed on the ground that whatever defect there might be as regards veera reddi's title, such defect did not affect the mortgage right of defendants nos. 1 and 2 as they were bona fide purchasers for value; their claim.....
Judgment:

Krishnan, J.

1. In this case-the plaintiff who had obtained a decree against the 3rd defendant, attached the plaint property as belonging to the '3rd defendant, but he was met by a claim petition put in by defendants Nos. 1 and 2 claiming that the property belonged to them and that the 3rd defendant had no interest in it. The claim was allowed and this suit is brought by the plaintiff to have that order set aside' and to have it declared that the property really belongs to the 3rd defendant and is liable to be attached and sold for his-decree, debt. The lower Courts have dismissed the plaintiff's suit.

2. Originally the property belonged to the 3rd defendant, but he made a gift of it in 1912 to one Veera Reddi alias Musali Reddi. The donee then mortgaged the property by way of simple mortgage to defendants Nos. 1 and 2. It would seem that, on a former occasion, this property was attached as the property of the 3rd defendant by another decree-holder, one Subbarayudu. At that time both Veera Reddi and the present defendants Nos. 1 and 2 put in separate claim petitions urging their different interests in the property. As regards the 1st and 2nd defendants, their claim was allowed on the ground that whatever defect there might be as regards Veera Reddi's title, such defect did not affect the mortgage right of defendants Nos. 1 and 2 as they were bona fide purchasers for value; their claim was allowed under the last clause of Section 53 of the Transfer of Property Act. Against the order on the claim petition no suit was filed by any one; but, as regards the adverse order against Veera Reddi', he filed a suit against the decree-holder Subbarayudu. Defendants Nos. 1 and 2 had nothing to do with that suit and they were not made parties to it. Even before the claim petitions were brought, defendants Nos. 1 and 2 had obtained a preliminary mortgage-decree on their mortgage against Veera Reddi only. Subsequent to the claim petition they seem to have got a final decree in the matter and they executed that decree against Veera Reddi, and the property was brought to sale and purchased by one of the defendants. Veera Reddi's suit finally failed. There was subsequently again an attachment by the same decree-holder of the property as 3rd defendant's property. By that time the Court-auction had taken place and the sale to one of the defendants had been complete. The defendants put in a claim petition again and urged their right by purchase against that attachment. That claim was allowed and no further steps were taken to contest that order on, the' claim petition. Now the plaintiff, who is another decree-holder, attaches the property again as the 3rd defendant's. He contends that as he was not a party to any pf the previous proceedings, he is not bound by those proceedings and, therefore, it is open to him to show now that the 3rd defendant is still the owner of the property and he is entitled to attach the property as the 3rd defendant's; I am prepared to concede that this decree-holder as a new creditor is not bound by the previous proceedings. as he was not a party to any of them; but the difficulty in his way will then be that he must show in this case now afresh that the gift to Veera Reddi by the 3rd defendant is not a valid gift and that the mortgage by Veera Reddi to defendants Nos. 1 and 2 is not valid and, therefore, the property is 3rd defendant's. It has not been pressed before me that there is anything invalid as regards the mortgage; the very same reason that was given for upholding it in the first claim petition is applicable. The defendants Nos. 1 and 2 are bona fide purchasers for value and under the last clause of Section 53 of the Transfer of Property Act they are not affected by any defect in Veera Reddi's title even assuming that there is any such defect. Both the lower Courts have found it and I think they are right in their finding; that finding is scarcely attacked before me. It is, however, contended that, so far as the equity of redemption is concerned, it is still in the 3rd defendant on the footing that the gift to Veera Reddi is not a good gift. Of course, if the gift to Veera Reddi could be shown to be a bad gift, it will not be binding as against this decree-holder. The 3rd defendant was not a party to the mortgage-suit; and though the mortgage itself might be binding on him, his equity of redemption could not be treated as having been properly sold so as to bind him. But the difficulty in the way of the plaintiff is that he has made no attempt in this case to show that the gift to Veera Reddi is a bad one. He says it was so found in the previous litigation as between Veera Reddi and the 3rd defendant and the then decree-holder; but, as he himself argues, he is not bound by the findings in that suit either by way of res judicata or lis pendens; nor is the finding in that suit binding upon defendants Nos. 1 and 2, the mortgagees, as they were no parties either. The doctrine of lis pendens cannot be extended to give any advantage to the plaintiff in this case. Just as the plaintiff is not bound by the previous proceedings, he cannot take advantage of them. There must be mutuality in this matter. The earned Vakil for the plaintiff relies upon the case reported as Gnanambal v. Parvathi 15 M. 477 : 2 M.L.J. 212, for saying that he is not estopped from showing afresh 'that the property is still third defendant's. That ruling, no doubt, supports him and I am prepared to follow it; but as already pointed out he is met by the difficulty that he has not attempted in this case to show that there is anything wrong in Veera Reddi's gift, and the fact that Veera Reddi's gift was not supported by the Court in a suit by another creditor cannot be taken advantage of in this Court,

3. The second appeal, therefore, fails and is dismissed with costs.


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