AI Structured Summary
Not yet generated for this judgment
Judgment
S.S. Subramani, J.—Plaintiff in O.S. No. 57 of 1986, on the file of Sub Court, Srivilliputhur, is the appellant. In the suit, appellant claimed the following reliefs: -
"(a). Declaring that the plaintiff alone is entitled to, in law, redeem the mortgage dated 16.2.73 in respect of the schedule mentioned property in favour of the 2nd defendant and consequently
(b) for an injunction restraining the first defendant not to interfere with the right. title and interest of the plaintiff to redeem the mortgage in favour of the second defendant, and with the possession of the suit property:
(c) awarding cost of the suit to the plaintiff from the defendants; and
(d) granting such other and further reliefs as this Hon''ble Court may deem fit and proper under the circumstances of this case and thus render justice
Material averments in the plaint may be stated as follows:-
Plaintiff is the owner of the schedule property. The same was mortgaged to second defendant-Bank. The title deeds have been deposited in the Bank with intent to create and equitable mortgage. 2nd defendant has filed O.S. 140 of 1978 on the file of Sub Court, Srivilliputtur and has obtained a mortgage decree on 6.11.1978 and final decree on 2.4.1980. Long before the institution of the suit by second defendant, first defendant filed O.S. 61 of 1975 against the plaintiff in Sub Court, Ramanathapuram, and obtained a simple money decree. In execution of the said money decree, first defendant filed E.P.45 of 1985, for attachment and sale of the schedule mentioned property. In the proclamation schedule, there is no whisper about the encumbrance in favour of second defendant. Thereafter, first defendant company itself purchased the property in Court auction on 26.4.1983. It is further said that the plaintiff is in continuous possession and enjoyment of the property. Second defendant, pursuant to the final decree, filed Execution Petition to bring the property to sale. First defendant is now attempting to interfere with the plaintiffs right of redemption. Second defendant is also joining hands with first defendant, and, therefore, the present suit is filed to declare that the appellant/plaintiff alone is entitled to redeem the second defendant on payment of the amount due to it, and for a consequential injunction restraining the first defendant from interfering with her right of redemption.
In the written statement filed by first defendant, its partner said that the company has obtained a money decree against the plaintiff, and the property was brought to sale with notice to her, and the same was sold in Court auction. An attempt was made by her (plaintiff) to have the sale set aside under Order 21, Rule 90, C.P.C. but the same was allowed to be dismissed for default, and later, the sale itself was confirmed. It is the further contention of the first defendant that after confirmation of sale, delivery of property itself was taken through Court, and both plaintiff and her husband have attested the ''Kaicheet''. After effecting delivery, plaintiffs husband requested for some more time to surrender vacant possession. Six months'' time was granted, and in the meanwhile, the present suit was filed. It is further said that whatever right plaintiff had, is lost by the Court-sale and the entire right, title and interest of the plaintiff is obtained by first defendant. No portion of the equitable redemption is retained by plaintiff and, therefore, she is not entitled to redeem the second defendant. There is no case for injunction, and the suit is also barred under S. 47, C.P.C.
In the written statement filed by second defendant, the Bank also contended that the plaintiff is not entitled to redeem, and at any rate, the present suit is filed without any good faith.
In the additional written statement filed by first defendant, it is said that the property has already been sold in auction, and purchased by one Chockalingam (auction-purchaser). He is also a necessary party to the suit. First defendant company prayed for dismissal of the suit.
To all these written statements, a reply statement was also filed by plaintiff, reiterating her case that under Sec. 60 of the Transfer of Property Act, her right of redemption is lost (sic), and she is still entitled to exercise the right of redemption.
On the above pleadings, the trial Court took oral and documentary evidence. On the side of plaintiff, Exs.A-1 to A-5 were marked. No document was marked on the side of defendants. Exs. C-1 to C-4 were marked as Court Exhibits. Husband of plaintiff was examined as P.W.1. Four witnesses were examined on the side of defendants.
Lower Court found that the suit is not maintainable. Plaintiff has no right of redemption, and she has lost the entire right including the right of redemption in favour of the first defendant and, therefore, the suit was liable to be dismissed. It further found that the suit is also barred under S. 47, C.P.C. It is against the said judgment, plaintiff has preferred this Appeal.
In this Appeal, the following questions emerge for consideration: -
1) Is the plaintiff/appellant entitled to redeem the mortgage and have the sale set aside by exercising her right of redemption?
2) Is the suit barred under S. 47, C.P.C?
3) Whether the decision of the Court below requires interference in this appeal?
Question Nos. 1 and 2 can be considered together.
It is not disputed that originally the plaint property belonged to the plaintiff. The title deed in respect of the same was deposited with second defendant and the plaintiff had created an equitable mortgage. It is dated 16.2.1973. It is also not disputed that second defendant filed a suit to recover the amount due to it, by sale of the mortgaged property. Preliminary decree was passed on 6.11.1978 and final decree was also passed on 2.4.1980.
In the meanwhile, first defendant who had already obtained a decree for money against the plaintiff, attached the property and brought the same for sale. The sale was also conducted on 26.4.1983, i.e., after the second defendant Bank obtained a decree for sale in its favour and before its demands were settled. Sale in favour of first defendant was sought to be set aside by plaintiff by filing an Application under Order 21, Rule 90, C.P.C. The same was not prosecuted, and, ultimately, the sale in favour of 1st defendant was confirmed sale certificate was also issued. It is the case of 1st defendant that pursuant to the Sale Certificate, it has already taken possession of the property and the plaintiff has no possession. It is further said that after the Bailiff effected delivery, to which plaintiff and her husband are attestors plaintiffs husband requested for some time to surrender possession. It is on the basis of the said request, plaintiffs husband is in occupation of the property.
After the sale in favour of first defendant had become final, second defendant brought the property to sale, and it was sold in auction. It is said that one Chockalingam has now purchased the property. In view of the interim order passed by the trial Court as well a this Court, the sale in favour of Chockalingam has not become final.
Since the sale has not become final, is the plaintiff entitled to pay-off the Bank, is the question to be decided.
It is settled law that before a sale pursuant to a mortgage decree becomes final, it could be set Aside at any time. This is the settled legal position as of now, in view of the decision reported in Maganlal Vs. Jaiswal Industries, Neemach and Others, of the said Judgment can usefully be referred to:-
"A similar view was taken by this Court in Sri Ranga Nilayam Rama Krishna Rao v. Kandokori Chellayamma where it was held that when an appeal is filed against on order refusing to set aside an execution sale under Order 21, Rule 90 of the Code no finality can be attached to the order confirming the sale until the appeal is decided. In S.V. Ramalingam v. K.E. Rajagopalan the question came up directly in connection with tile applicability of Order 34, Rule 5 itself which contemplates payment into Court "on or before the day fixed or at any time before the confirmation of a sale". In that case too in pursuance of a final decree passed in this behalf the mortgaged property was sold and the applications made by the mortgagors for setting aside the sale certificate were dismissed and the sale was confirmed and the sale certificate was also engrossed on stamp papers. The mortgagors filed an appeal against that order before the High Court and during the pendency of the appeal an application under Order 34, Rule 5 was filed "for redemption of mortgage. This application was opposed inter alia on the ground that such an application could not lie after the sale had been confirmed by the lower Court. While repelling the objection of the auction purchaser and holding that die judgment debtors were entitled to the benefit of Order 34, Rule 5 of the Code it was held by Mr. Justice S. Natarajan (as His Lordship then was):
"The confirmation of a sale subsequent to the dismissal of a petition under Order 21, Rule 90 cannot, in reality, alter the situation when the mortgagor-judgment debtor has preferred within time an appeal against the dismissal of his petition under Order 21, Rule 90. Though the confirmation of the sale does take the auction-purchaser a step further than before the confirmation of the sale, the confirmation, by itself, is in one sense, inchoate.
The confirmation gives the sale only viability but does not render the sale an indefeasible one, till such time as the appeal preferred by the mortgagor against the validity of the sale remains undisposed. In that sense, the confirmation effected by the Executing Court may become final as far as the Executing Court is concerned, but it certainly does not stamp the transaction with irrevocable finality when alone the right of parties gets crystallised beyond retracement. Consequently, the appeal preferred by the judgment debtor has the effect of rendering a sale and its confirmation fluid and nebulous. It, therefore, follows that the finality of the sale is rendered at large before the Appellate Court in appeal and as such, the petitioners will be entitled to exercise the right conferred on them under Order 34, Rule 5 to redeem the mortgage".
The same view was reiterated in almost an identical case by a Bench of the Madras High Court in M. Sevugam Chettiar v. V.A. Narayana Raja. It was held that so long as there is no confirmation of sale in the eye of law and matter was sub judice in appeal time was available for the judgment debtor to make the deposit under Order 34, Rule 5 of the Code and the process of deposit could be worked out until the confirmation of sale reaches the finality.
Section 60 of the Transfer of Property Act confers on the mortgagor a right to redeem a mortgage. In so far as it is relevant for the purpose of these appeals the said section reads as hereunder:
"60 Right of mortgagor to redeem: At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to retransfer the mortgaged property to him or to such third person as he may direct, or to execute and where the mortgage has been effected by a registered instrument to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:
Provided that the right conferred by this section has not been extinguished by act of the parties or by-decree of a court."
In Raghunath Singh v. Mt. Hansraj Kunwar in a suit filed for redemption of a mortgage a decree was passed containing the provision that in a case of default by the plaintiff in payment his case will stand dismissed. Payment as contemplated by the decree was, however, not made and subsequently as second suit for redemption was filed. It was contested inter alia on the ground that in view of the non-payment of the decretal amount the previous suit stood dismissed and on account of the dismissal of that suit the subsequent suit was not maintainable inasmuch as right of redemption stood extinguished. The Privy Council after making reference to the proviso to Section 60 of the Transfer of Property Act rejected the aforesaid objection and held:
"The right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose, and strictly complied with. In the present case the only basis for the claim that the right to redeem has been extinguished is Section 60 ; but in their Lordships view the old decree cannot properly be construed as doing that which it does not purport to do, viz., as extinguishing the right to redeem."
This question came up very recently before this Court in Mhadagonda Ramgonda Patil v. Shripal Balwant Rainade. The mortgagors in that case filed a suit for redemption and obtained a final decree for sale of the mortgaged property. They, however, did not execute that decree and allowed the same to be time-barred. Subsequently, a second suit for redemption was filed claiming that the mortgage still subsisted and the mortgagors were entitled to redeem the same and get possession of the mortgaged property. The suit was contested inter alia on the ground that as the mortgagors did not pay the decretal dues under the decree passed in the previous suit their right of redemption had been extinguished. The aforesaid plea raised in defence was repelled by the trial court and the suit for redemption was decreed. The defendants preferred an appeal against that decree before the High Court and raised a similar contention as was their defence in the trial court. It was held by the High Court that in spite of the fact that in the earlier suit a preliminary decree and final decree were passed and the mortgagors did not redeem the mortgages by depositing the decretal dues, still the right of redemption was not extinguished. The findings of the High Court aforesaid with regard to the maintainability of the second suit for redemption were challenged by the defendants before this Court and it was reiterated by their learned counsel that second suit was not maintainable. While repelling this submission and interpreting the provisions to Section 60 of the Transfer of Property Act it was held: (SCC p.303, para 12):
"It is thus manifestly clear that the right of redemption will be extinguished (1) by the act of the parties or (2) by the decree of a Court. We are not concerned with the question of extinguishment of the right of redemption by the act of the parties. The question is whether by the preliminary decree or final decree passed in the earlier suit, the right of the respondents to redeem the mortgages has been extinguished. The decree that is referred to in the proviso to Section 60 of the Transfer of Property Act is a final decree in a suit for foreclosure, as provided in sub-rule (2) of Rule 3 of Order 34 and a final decree in a redemption suit as provided in Order 34, Rule 8 (3) (a) of the Code of Civil Procedure. Sub-rule (2) of Rule 3, inter alia provides that where payment in accordance with sub-rule(1) has not been made, the Court shall, on an application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him are debarred from all right to redeem the mortgaged property land also, if necessary, ordering the defendant to put the plaintiff in possession of the property. Thus, in a final decree in a suit for foreclosure, on the failure of the defendant to pay all amounts due, the extinguishment of the right of redemption has to be specifically declared, Again, in a final decree, in a suit for redemption of mortgage by conditional sale or for redemption of an anomalous mortgage, the extinguishment of the right or redemption has to be specifically declared, as provided in clause (a) of sub-rule(3) of Rule 8 of Order 34 of the Code of Civil Procedure. These are the two circumstances-(1) a final decree in a suit for foreclosure under O. order 35 rule 1, R. 3 (2); and (2) a final decree in a suit for redemption under O. 35, R. 8 (3)(a) of the CPC when the right of redemption is extinguished."
It was farther held that in a suit for redemption of a mortgage other than a mortgage by conditional sale or an anomalous mortgage, the mortgagor has a right of redemption even after the sale has taken place pursuant to the final decree, but before the confirmation of such sale. In view of these provisions the question of merger of mortgage debt in the decretal debt does not arise at all.
In this view of the matter we are of the opinion that in case the provisions of Order 34, Rule 5 of the Code are held to be applicable to the facts of the instant case appropriate relief can be granted there under as the order of confirmation of the sale passed by the High Court in favour of the first purchases has not become absolute due to the pendency of these appeals against that order nor has the right of redemption of Maganlal yet extinguished."
The aforesaid decision was followed by the Supreme Court again in New Kenilworth Hotels (P) Ltd. Vs. Ashoka Industries Ltd. and Others,
But the further question that arises for consideration is, whether the plaintiff can exercise that right once it is admitted that her right has been sold in court-auction and purchased by 1st defendant. The plaintiff is a mortgagor is not disputed. But Section 59A of the Transfer of Property Act says that "Unless otherwise expressly provided, references in this chapter to mortgagors and mortgagees shall be deemed to include references to persons deriving the title from them respectively''''. So, the question to be considered is, whether the title of the plaintiff is now obtained by first defendant, and if the first defendant has obtained title, in the place of the plaintiff, first defendant will be substituted as a mortgagor. In this connection, learned counsel for appellant Submitted that the court-sale in favour of first defendant is invalid and cannot bind her. It is further said that the same was conducted during the pendency of the mortgage suit and, therefore, it is hit by the principle of lis pendens. A further argument is put forward that as between the mortgagor and mortgagee, her right of redemption cannot be extinguished unless it is so declared by act of parties or by decree of Court. In this case, it is said that no such contingency has happened, and so long as her title as mortgagor continues, and so long as the sale has not been confirmed, her right to redeem cannot be denied. Learned counsel for appellant relied on Sec. 2(d) of the Transfer of Property Act for the said purpose.
How far the said contention can be accepted, is to be seen. Section 2 of the said Act deals with repeal of certain enactments. But it further says, But nothing herein contained shall be deemed to affect-(a) to (c)... (d) save as provided by Section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction; and nothing in the second chapter of this Act shall be deemed to affect any rule of Muhammadan law''.
I do not think any of these contentions can be accepted in this case. Transfer of Property Act deals only with the transfer of property by act of parties. It has nothing to do with transfer of property by operation of law. If, by operation of law, title in respect of a property could be conveyed, the provisions of the Transfer of Property Act cannot be applied, nor could the validity of such a conveyance be questioned. A Court-sale is considered to be a transfer of title by operation of law.
Mulla, in ''The Transfer of Property Act'' Eighth Edition (1995), commenting on Sec. 2(d) , at page 11, has said thus-
"''The Act, but for certain exceptions referred to below, does not apply to transfers by operation of law, but is limited, as stated in the preamble, to transfers" ''by act of parties''. A transfer by operation of law is not validated or invalidated by anything contained in the Act. Transfers by operation of law occur in cases of testamentary and inter state succession, forfeiture, in solvency and court-sales. A purchaser at a court-sale acquires title by operation of law, and at such sales tide is transferred without a registered deed."
(Emphasis supplied)
In one of the earliest decisions of the Bombay High Court reported in AIR 1915 Bombay 89 (Vasudev Raghunath Oka v. Janardhan Sadashiv Apte), their Lordships held thus:-
"It was suggested, however, that the defendant would be a subsequent transferee or a person having an interest in the property within the meaning of Section 53, paragraph 1. But the defendant is an auction-purchaser at a court sale, and not a transferee by any act of the original owner. Having regard to the preamble as well as Section 5 of the Act, it seems to be clear that a person who steps in by operation of law and not by any act of the owner is not a subsequent transferee within the meaning of Section 53..."
In AIR 1955 Madras 245=68 L.W.896 (R.M.S. Benjamin v. Devadoss and others), the-Court was considering the scope of transfer within the meaning of S. 9-A(3) of the Madras Agriculturists'' Relief Act (4 of 1938 as amended by Act 23 of 1948). While discussing the same, the learned Judge followed the decision in Surayya v. Venkataramanamma (AIR 1940 Madras 701) and said that only act of parties will come within the scope of S. 9-A, Sub-sec. (10) (II)(b), Madras Agriculturists Relief Act.
In AIR 1958 Patna 568 (Mahendra v. Suraj Prasad,) was held thus:-
"Clause (d) of S. 2 read with the Preamble makes it clear that the T.P. Act does not apply to transfers by operation of law or or in execution of a decree or order of a Court of competent jurisdiction. The transfers governed by the Act are transfers by ''act of parties''. Hence, purchase at an auction sale is not a transfer as contemplated by the Transfer of Property Act, and, is, therefore, not validated or invalidated by anything contained in the Act....."
In AIR 1964 A.P. 514 (Ambiah v. A. Mallanna), their Lordships said that the provisions in the Transfer of Property Act regarding transfer are not exhaustive. In the said decision, it was held thus-
"Though S. 5 of the T.P. Act makes it clear that the said Act governs only transfers by act of parties and excludes transfers or alienations not brought about by will of parties, it cannot be overlooked that the T.P. Act is not exhaustive of all the modes of transfer...."
This position has been settled by the Supreme Court in the decision reported in (1965) 1 S.C.W.R. 303 (Laxmi Devi v. Mukand Kanwar & others). Paragraphs 14 of 16 are relevant for our purpose. They read as follows:-
"It is true that when S. 2 (d) was originally enacted, the latter part of S. 100 was not included in the Transfer of Property Act; this was added in 1929 by S. 50 of Act 20 of 1929. That however, would make no difference to the interpretation of the relevant clause in S. 2(d) The fact that the saving clause included in S. 2(d) as it was originally enacted, could not have taken in the latter part of S. 100, makes no difference to its construction, because as soon as the latter provision was added to S. 100; it became a part of the provisions contained in Chapter IV and automatically fell within the terms of the saving clause. If the legislature had intended that the provision added to S. 100 in 1929 should not fall within the saving clause an appropriate provision would have been made by amending S. 2 (d) in that behalf. Therefore, S. 2 (d) by itself clearly supports Mr. Sharma''s contention that the appellant who is an auction-purchaser would be able to claim immunity against the enforcement of the charge in favour of respondent No. 1 by virtue to the provisions contained in the latter part of S. 100.
This position, however, has become somewhat complicated by reason of the provisions contained in S. 5. of the Transfer of Property- Act. Section 5 provides, inter alia, that in the following section "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons. In other words, in terms, the definition of the expression "transfer of property" as used in all the sections of the Transfer of Property Act is intended to take in transfers effected by acts of parties inter vivos, and an auction sale clearly is not such an Act. Section 5 would, therefore, appear to exclude auction sales from the purview of S. 100 altogether. This result would appear to be consistent with the provision in the preamble of the Act which says that the, Transfer of Property- Act was enacted because it was thought expedient to define and amend certain parts of the law relating, to the transfer of property by act of parties. That is the position which emerges from the reading of S. 5 coupled with the preamble and that naturally raises the question as to how to reconcile these two inconsistent positions.
In our opinion, the positive provision contained in S. 2 (d) must prevail over the definition of "transfer of property" prescribed by S. 5. No doubt, the purpose of the definition is to indicate the class of transfers to which the provisions of the Transfer of Property Act are intended to be applied, but a definition of this kind cannot over-ride the clear and positive direction contained in the specific words used by S. 2 (d). As we have already seen, the result of the saving, clause enacted by S. 2 (d) is to emphasis the fact that the provisions of S. 57 and those contained in, Chapter IV must apply to transfer by operation of law"
(Emphasis supplied)
If a Court sale is a transfer by operation of law and the same could give a valid title to the first defendant, it cannot be said that the plaintiff has retained any right over the property. She must have a subsisting right over the mortgaged properly. If the entire equitable mortgage right is transferred, she cannot thereafter exercise the right of redemption.
In Sir Hari Singh Gour''s Law of Transfer"-8th Edition (1973), Volume HI, at page 3217, commenting on S. 91 the learned Author has said that Besides the mortgagors", i.e., a mortgagor who has a subsisting title to the mortgaged property, including his legal representatives and assignees'', (emphasis). In the same page, further down, the learned Author has said thus:-
"..One mode of redeeming the mortgaged property is for the party redeeming to declare his status and pay or tender the mortgage money to the mortgagee. If the latter refuses to accept payment, it " may then be necessary to institute a suit for redemption, unless some other course is feasible A question has sometimes been raised in practice whether a person entitled to redeem can inter(sic)ne in execution, as for instance, after the passing of the preliminary decree, and before it is made final. Thus he can only be permitted to do, if he can be described as the representative of the mortgagor within the meaning of Sec. 47 of the Code. There can be no doubt that this term is wide enough to include a representative in point of interest, such as an assignee of the mortgagors interest. In such a case it is not the mortgagor but his assignee who is entitled to redeem the mortgaged property. For a mortgagor, as such has not the right to redeem the property, if he has absolutely parted with his equity of redemption, or if the equity of redemption has been sold in execution, though no certificate of sale may have been granted to the purchaser."
(Emphasis supplied)
Learned counsel further submitted that even if the first defendant has purchased the property in Court-sale, S. 52 of the Transfer of Property Act makes the transfer invalid. Therefore, it has to be ignored. Learned counsel says that even if it is an involuntary sale, the provisions of Sec. 52 of the Transfer of Property Act are made applicable to such cases. Plaintiff is, therefore, entitled to avoid the Court-sale.
The said submission by learned counsel for the appellant is also without any legal basis. A transfer pending litigation is not void altogether. But the same will be subject to the result of suit. In Nagubai Ammal and Others Vs. B. Shama Rao and Others, similar question came for consideration. It was held (in para 25) thus:-
"But it is argued for the appellants that having regard to the words of S. 52 that pendente lite the property cannot be transferred", such a transfer must, when it falls within the mischief of that section, be deemed to be non est. that in consequence Keshavananda must, for purposes of lis pendens, be regarded as the owner of the properties, not withstanding that he had transferred them, and that the Official Receiver who succeeded to his right has a right to be impleaded in the action.
This contention gives no elect to the words "so as to affect the rights of any other party thereto'' under any decree or order which may be made therein", which makes it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the parties thereto".
In Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, , in paragraph 16 of the judgment, their Lordships said thus:-
"What then is the position of the respondent once it is held that the final decree for foreclosure was validly passed by the trial Court? Could he challenge that decree in an appeal against it in the High Court on the basis that he was entitled to redeem the said mortgage? Section 91 of the Transfer of Property Act provides that besides the mortgagor any person other than the mortgagee who has any interest in or charge upon the property mortgaged or in or upon the right to redeem the same may redeem or institute a suit for redemption of such mortgaged property. An execution purchaser therefore of the whole or part of the equity of redemption has the right to redeem the mortgaged property. Such a right is based on the principle that he steps in the shoes of his predecessor-in-title and has therefore the same rights which his predecessor-in-title had before the purchase. u/s 59A of the Act also all persons who derive title from the mortgagor are included in the term "mortgagor" and therefore entitled to redeem. But u/s 52 which incorporates the doctrine of lis pendens, during the pendency of a suit in which any right to an immovable property is directly and specifically in question such a property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may impose. Under the Explanation to that section the pendency of such a suit commences from the date of its institution and continues until it is disposed of by a final decree or order and complete satisfaction or discharge of such a decree or order has been obtained. The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him..........."
(Emphasis supplied)
In view of the said decision, it is clear that the first defendant steps in the shoes of its predecessor-in-title and gets the same rights which plaintiff had before purchase. In effect, it is a substitution of the first defendant in the place of plaintiff.
In paragraph 17 of the decision reported in Kedar Nath Lal and Another Vs. Ganesh Ram and Others, also, their Lordships reiterated the said position. It reads thus:-
"Lastly it was contended that the sale was by court auction and the doctrine of lis pendens would not apply to such a sale. This point was considered in Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, by one of us (Shelat, J.) and it was observed as follows:-
"...The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holder v. Manohar (1887) 15 Ind. App. 97 where the facts were almost similar to those in the instant case. It is true that Section 52, strictly speaking, does not apply to involuntary alienations seen as Court sales but it is well established that the principle of lis pendens applies to such alienations..."
The effect of S. 52 of the Transfer of Property Act-is only that the first defendant, who is also an auction-purchaser, is also bound by the decree obtained by second defendant.
The further question is, what is the decree obtained by second defendant. The decree in favour of second defendant is for sale of the mortgaged property, i.e., the plaint schedule, unless the amount due to it is not paid. Since the amount was not paid, sale was conducted under O. order 34 rule 1, R. 5. C.P.C. It has not become final. In view of the decisions of the Supreme Court which I have referred to already, namely Maganlal Vs. Jaiswal Industries, Neemach and Others, first defendant which is substituted in the place of plaintiff, is entitled to pay the amount and redeem the mortgage or to have the sale set aside. Whatever right plaintiff has, including right, title and interest over the property is now taken by the first defendant. First defendant Is, therefore competent to discharge the debt due to the second defendant.
Next question to be considered is, how far the suit is maintainable, and whether the same is hit by the bar of S. 47, C.P.C. Sec. 47, C.P.C. reads thus:-
"47 (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution discharge or satisfaction of the decree and not by a separate suit. (2) (omitted by Amendment Act, 1976 w.e.f. 1.2.1977).
(3) Where a question arises as to whether any person is or is not the representative of a parry, such question shall, for the purposes of this section, be determined by the Court.
Explanation 1: For the purposes of this Section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation 11(a): For the purposes of this Section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) all questions relating to the deliver, of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this Section".
In this case, plaintiff wants declaration that she is the only person entitled to redeem the property on payment of the amount due to the second defendant-Bank. A suit is filed by second defendant for recovery of money by sale of the mortgaged property. First defendant claims that he is the representative of the plaintiff. If the first defendant is a representative of plaintiff, then, in the decree obtained by second defendant, first defendant also shall be deemed to be a party. The question that arises is, whether, in a decree obtained by second defendant, the dispute between plaintiff and first defendant regarding execution. discharge and satisfaction of a decree obtained by second defendant is of any relevance. The fight is between two judgment-debtors, one claiming to be representative of another, who claims that she is entitled to discharge the decree debt, i.e., the fight is between first defendant and plaintiff. In the inter se dispute between them, the decree-holder (second defendant) is not interested. It is interested only in getting the amount due to it. Unless the decree-holder is also interested in the inter se dispute between plaintiff and first defendant, it cannot be said that Sec. 47, C.P.C. will apply. The question that arises u/s 47, C.P.C. must be a question between the parties, i.e.. decree-holder and judgment debtor. The inter se dispute between decree-holders in which judgment debtor is not interested and likewise the inter se dispute between the judgment-debtor and his representative, in which the decree-holder is not interested, is not a bar under Sec. 47, C.P.C.
Learned Counsel for first respondent submitted that first defendant is a purchaser in a sale of execution of the decree, i.e.. an auction purchaser, and, therefore, under Explanation II newly added by Amendment Act 104 of 1976, this question will have to be decided only under Sec. 47, C.P.C. and not by a separate suit. The Court sale is not in the suit filed by second defendant. If the first defendant has purchased the property in court-auction in the mortgage decree, probably the contention can be accepted as valid.
First defendant claims right to property in pursuance of a suit to which second defendant was not a party, nor was it interested in such a suit. Therefore, the Explanation also may not have any application as contended by learned counsel appearing for the first respondent.
In the result, I hold that the first defendant alone is the mortgagor and entitled to redeem the property. Plaintiff has lost her right by Court sale. The principles of Sec. 52 of the Transfer of Property Act will not invalidate the Court-sale. It is binding between plaintiff and first defendant. The suit is not barred under Sec. 47, C.P.C
The Court below has held that the suit is barred under S. 47, C.P.C. That decision is not correct. But the conclusion arrived at by the Court below that the plaintiff has no right of redemption is to be confirmed. In the result, confirming the judgment and decree of the Court below, I dismiss this Appeal with costs. Consequently C.M.P. Nos. 4012 of 1989 and 3880 of 1993 are also dismissed.