Ammayi Ammal vs Rathna Pathan and Others

It is contended on behalf of the appellant that inasmuch as the prior mortgagee was not a party to the appeal in the lower appellate Court, the

appeal should have been dismissed. The contention of the first respondent is that the prior mortgagee was not a necessary party u/s 85 of the

Transfer of Property Act, inasmuch as the property mortgaged to the puisne mortgagee was only the equity of redemption, that the word

property"" in Section 85 should be read as ""interest"" and therefore the prior mortgagee was not a person interested in the property comprised in the

mortgage.

We are clear, that in this case the actual property was the subject-matter of the mortgage and not merely the equity of redemption and are of

opinion that the prior mortgagee was a necessary party to the appeal.

We, therefore, set aside the decree of the lower appellate Court and direct that the prior mortgagee be trade a party to the appeal and that the

appeal be retaken on the file of the lower appellate Court and disposed of according to law. The costs will abide and follow the event.