ORDER
1. The plaintiff in O.S.No. 178 of 1981 on the file of the Principal District Munsif, Karaikkal who had succeeded before the trial court and lost before the first appellate court is the appellant. This second appeal is directed against the judgment and decree of the learned First Additional District Judge, Pondicherry at Karaikkal made in A.S.No. 15 of 1983 dated 9.7.1984 in reversing the judgment and decree of the trial court.
2. At the time of admission the following two substantial questions of law were framed by this Court:
(i) Whether the lower appellate court is justified in holding that the defendant is not a trespasser and on that score the suit is liable to be dismissed?
(ii) Whether the court below erred in not taking into consideration or giving a specific finding on the question whether the suit is different from the property purchased by the defendant?
3. For convenience the parties to this appeal will be referred as arrayed before the trial court. Heard Mr.K. Yamunan, learned counsel appearing for the appellant and Mr.M. Yoganandan for the respondent.
4. The plaintiff instituted the suit in O.S.No. 178 of 1981 on the file of the Principal District Munsif Court, Karaikkal for ejectment of the defendant from the suit property and for costs. The trial court held that the plaintiff had acquired valid title to the suit property, that the property purchased by the defendant in the court auction sale is different from the suit property, that the defendant is in exclusive possession and enjoyment of the suit property and in the light of the said findings decreed the suit as prayed for. On appeal, the first appellate court had reversed the judgment and decree of the first appellate court. Hence the second appeal.
5. According to the plaintiff the suit property originally belonged to one Marimuthu with whom the plaintiff entered into an agreement to purchase the suit property on 31.8.1974, that the plaintiff was put in possession of the suit property on the date of the agreement, that the plaintiff was cultivating the same till fasli year 1980-81, that after prolonged litigation the suit for specific performance was decreed on 25.8.1978 that there was no encumbrance over the suit property, that when the plaintiff went to the suit property to start cultivation for fasli year 1981-82 he saw the defendant had undertaken agricultural operation by transplanting paddy seedlings, that the plaintiff after lodging a police complaint had instituted the suit and that he is entitled to the reliefs prayed for.
6. The suit was resisted by the defendant pleading that the suit property and other adjacent properties were mortgaged with him by Marimuthu under a registered deed dated 20.9.1974 for Rs. 3,000, that as the mortgage was not discharged the defendant instituted the suit in O.S.No. 176 of 1979 on the file of the Principal District Munsif Court, Karaikkal for recovery of the amount due, that in execution of the final decree, the defendant purchased the suit property in the court auction on 28.10.1980 and he took possession of the suit property on 7.2.1981 in E.P.No. 7 of 1981, that in the encumbrance certificate furnished, there is no entry of sale in favour of the plaintiff, that the purchase by the plaintiff after the mortgage is not binding on the defendant, that the alienation is hit by lis pendens, that the plaintiff was present at the time of delivery of the suit property, but he had not placed any objection, that the plaintiff is estopped from claiming any relief, that the suit is barred under section 47 of the Civil Procedure Code and that the plaintiff is not entitled to any decree.
7. The trial court framed as many as nine issues. The plaintiff had examined himself while the defendant had examined two witnesses. The plaintiff marked Ex.A.1 to A.10 while the defendant marked Exs. B.1 to B.10. On a consideration of oral and documentary evidence, the trial court held that the contract of sale entered, between the plaintiff and the owner is valid and also found that the plaintiff was put in possession of the suit property in terms of contract of sale.
8. The trial court found that the plaintiff was put in possession on 31.8.1974 and continued in possession since then. The trial court also found that the sale in favour of the plaintiff is true and valid besides holding that the doctrine of lis pendens will not apply and also rendering a finding that the suit property which was purchased by the defendant in the court auction sale as evidenced by the sale certificate is different and also held that the property which was purchased by the defendant in the court auction sale is different from that of the property purchased by the plaintiff in terms of the contract.
9. On appeal the first appellate court had not gone into the question as to whether the suit property purchased by the defendant in the court auction and covered by the sale certificate is the same property or not? This failure to record a finding on this material issue had resulted in miscarriage of justice.
Admittedly though the mortgage in favour of the defendant is a registered mortgage, no encumbrance is found. It is also admitted by the defendant that the sale in favour of the plaintiff though anterior in point of time do not find a place in the encumbrance certificate furnished to him with respect to the property purchased by him. That apart, the very description of the property in the sale certificate, the earlier suit for specific performance instituted by the plaintiff and the present suit property would show that the defendant had not purchased the suit property and the finding of the trial court has to be sustained though there is some overlapping with respect to the survey or sub divisions.
10. Further, the plaintiff in the present suit has purchased the suit property long prior to the institution of the suit by the defendant to recover the amount due on the mortgage. The plaintiffs suit for specific performance was decreed on 29.3.1976 and in execution Ex.A.1 sale deed was executed on 25.8.1978 in favour of the plaintiff. It is admitted by both the parties that Marimuthu is the original owner of the suit property. The mortgage in favour of the defendant is evidenced by Ex.A.10 dated 24.7.1974. The defendant in execution of the decree in O.S.No. 176 of 1979 had purchased the property and Ex.B.4 is the sale certificate dated 28.10.1980 and the defendant had taken delivery on 7.5.1981 as seen from Ex.B.5 delivery certificate. On 19.2.1981, the delivery has been recorded.
11. It is to be pointed out that neither to the suit instituted by the defendant, nor to the execution proceedings, nor to the delivery proceedings, the present plaintiff was a party. The purchase by the present plaintiff was on 29.3.1976 under Ex.A.2, pursuant to the decree passed in his favour in the suit instituted by the plaintiff in O.S.No. 24 of 1975 for specific performance and subsequent thereto only the defendant instituted the suit in O.S.No. 176 of 1979. Even assuming that the property purchased by the present plaintiff is one and the same, it follows that the plaintiff is not a purchaser pendente lite and the decree obtained by the defendant in O.S.No. 176 of 1979 as well as the court auction sale and the sale proceedings behind the back of the plaintiff is invalid as to the said proceedings the present plaintiff was not a party.
12. Mr.K. Yamunan, the learned counsel for the appellant rightly relied upon the decision reported in AIR 1929 Cal. 233 (D.B), AIR 1931 Mad. 542 (D.B) AIR 1941 Cal. 613 and AIR 1968 Ker. 179 in support of his contention that the decree obtained by the defendant and subsequent delivery proceedings are invalid and not binding on the plaintiff as long prior to the institution of the suit the plaintiff herein had purchased the property in the suit instituted by the plaintiff for specific performance. There is no escape for the defendant as the legal position is well settled that without impleading the person who owns the equity of redemption the defendant who had purchased the property in the court auction sale will not acquire valid title and the suit as well as the execution proceedings are not binding on the present plaintiff.
13. This court had occasion to consider the identical point in S.A.No. 446 of 1987. While following decision in Nagubai Ammal v. Shama Rao,
, and reported in S. Boopathi v. G. Boopathy, 1970 (II) MLJ 449, this Court held thus:
‘Attention of this Court was drawn to the identical situation of a case in Nagubai Ammal v. Shama Rao, , wherein it has been held that a sale in execution of a decree passed in defectively constituted mortgage to suit does not affect the rights of redemption of persons interested in the equity of redemption who have not been impleaded as parties to the auction as they should have been under Order 34, Rule 1, CPC and non joinder of such a person who had purchased the equity of redemption to the suit is fatal and the Supreme Court held thus:
“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 P.C., but that it is valid and effective as against the parties to the action. This rule has been affirmed even when the person in whom the equity of redemption had vested is the Official Receiver, and he had not been made a party to the proceedings resulting in sale. Vide ‘Imanullah Khan v. Shambhu Dayal,’ AIR 1931 All. 159 and ‘Subbaiah Goundan v. Ramaswami Goundan, We should accordingly hold that even assuming that the equity of redemption in the suit properties vested in the Official Receiver on the adjudication of Keshayananda, his non joinder in the execution proceedings did not render the purchase by Devamma a nullity, and that under the sale she acquired a good and impeccable title, subject to any right which the official Receiver might elect to exercise, and it is not open to attack by the transferee pendente lite under the deed dated 30.1.1920 and his representatives, the present appellants. In the result, we agree with the courts below that the title of the appellants has been extinguished under section 52, T.P. Act, by the court sale dated 2.8.1928.”
In S. Boopathi v. G. Boopathy and another, 1970 (II) MLJ 449 it has been held by this Court, the rights of the purchaser of equity of redemption are unaffected by the suit on the mortgage to which he was not made as a party and the decree passed therein will not affect the right of redemption inhering in the purchaser of equity of redemption. In the said suit the plaintiff auction purchaser in the mortgage suit did not come forward to issue a delivery for the sale of the mortgage amount or for the proportionate amount of the mortgaged money as he has instituted the suit as a purchaser. In that context, this Court held thus:
“The Full Bench in Mulla Vipttil Seethi v. Achuthan Nair, has also laid down the same principle that the rights of the purchaser of the equity of redemption are unaffected by the 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 the 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, 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, the 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 purchaser and the cause of action would date from the date of obstruction to his possession…
The submission overlooks the Full Bench decision in Mulla Vettil Seethi v. Achuthan Nair, 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 mortgaged suit and the categorical observation in that judgment that the right of redemption is a right which the purchase of the equity of redemption may seek to enforce but not a liability which he may be compelled to discharge on paid 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 framed is not maintainable.
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, 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 purchase in his capacity as purchaser and not as a mortgagee requires reconsideration. He also cited before me the decisions in Ganapat Rama v. Timmaayya Narayan, and Kumaraswami Pillai v. Subramani Iyer, where the decision in Sambasiva Ayyar v. Subramania Pillai 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, Chandramma v. Gunna Seethan, and Nagendran v. Lakshmi did not support the view taken by the Division Bench in Sambasiva Ayyar v. Subramania Pillai.”
14. In the light of the above legal position, it follows that the defendant has not acquired any valid title in respect of the suit property alone. The judgment and decree of the first appellate court deserves to be set aside as the auction sale in which the defendant had purchased the suit property in so far as the plaintiff is concerned is invalid and so to say a nullity in law. The
judgment of the first appellate court deserves to be set aside and that of the trial court has to be restored.
15. The substantial questions of law are to be answered in favour of the appellant. In the light of the admitted fact that the plaintiff had purchased the property earlier in point of time and as the auction sale in favour of the defendant being invalid and not binding, the defendant is a trespasser as his purchase of the portion of the suit property is a nullity. The first appellate court had not chosen to render a finding with respect to the identity of the property, while the trial court held that what has been purchased by the plaintiff is not covered by the sale certificate issued in favour of the defendant. Hence, both the questions of law are answered in favour of the appellant.
16. At the end of the hearing, the learned counsel appearing for the respondent contended that the defendant should not be deprived of the money advanced on the security of the property as well as the property itself and that liberty should be given to the defendant to institute an appropriate proceedings.
17. Per contra, Mr.K. Yamunan, the learned counsel appearing for the appellant in his usual fairness represented that the appellant is willing to discharge the mortgage in proportion to the property purchased by the appellant. The learned counsel for the respondent also rightly accepted the same readily. The defendant had purchased larger extent of property which according to the defendant includes the suit property and that proportionate amount payable by the present plaintiff comes to Rs. 3,400 which includes the interest till the interference by the defendant pursuant to the sale certificate obtained by him. The correctness of Rs. 3,400 has been verified by counsel for either side and they have accepted the said sum as correct.
18. As represented by Mr.K.Yamunan, learned counsel for the appellant, a decree be passed directing the plaintiff to pay Rs. 3,400 as a condition precedent for recovery of possession of the suit property and ejectment of the defendant from the suit property. As both the parties have agreed for the amount to be paid, it is not necessary to go into any other controversy, besides they have also readily accepted the legal position, which is definitely a positive approach on the part of either side, which is a rarity in these days.
19. In the foregoing circumstances, the second appeal is allowed. The judgment and decree of the first appellate court are set aside and the judgment and decree of the trial court is modified holding that the plaintiff is entitled to recover possession and eject the defendant from the suit property within two months from the date of his depositing a sum of Rs. 3,400 to the credit of suit in O.S.NO. 178 of 1981 on the file of the Principal District Munsif Court, Karaikkal. Accordingly there will be a decree in O.S.No. 178 of 1981. The parties shall bear their respective costs throughout.