Annamalai Mudaliar vs Kuppuswamy Reddiar

Anantanarayanan, J.—The appeal is by the plaintiff in the first Court, who failed in both the Courts below to set aside a summary order in

E.A. No. 51 of 1955 in E.P.. No. 99 of 1954 which was itself an execution proceeding in O.S. No. 451 of 1951 on the file of the Court of the

District Munsif, Ranipet. The facts adequate for. the disposal of the appeal are as follows:

The suit properties originally belonged to Devarajulu Reddi and Pattusami Reddi of Agaram Village, who were brothers. One Eswara Vadivelu

Mudaliar had obtained a simple money decree against Devarajulu in S.C. No. 75 of 1950, and the interest of the judgment-debtor in the suit

property was brought to sale. The present plaintiff (appellant) purchased the property in Court auction on 26th. July, 1952. He obtained the sale

certificate and also obtained symbolical possession, and later had the property allotted to his share in the final decree in a suit against the co-sharer.

The original owners, the two brothers had executed a simple mortgage in 1944 over the property in favour of ore Rajaratna Reddi. That person

brought a suit on the foot of the mortgage in O.S. No. 451 of 1951 for recovery of a sum of Rs. 691-4-.0. It appears that the mortgage covered

other items also, with which we are not immediately concerned, and that there were sales by the mortgagors : of certain items to third parties. In

any event the mortgagee brought the suit item to sale and the defendant, a stranger according to the record prima facie, purchased properties in

Court auction on 26th November, 1954. When the defendant tried to take possession of the suit properties, the plaintiff (appellant) obstructed and

the defendant filed E.A. No. 51 of 1955 for the removal of obstruction. Removal of obstruction was ordered against the appellant, after

considering the defence of the appellant, and the appellant also failed in an appeal to the District Court.

In dismissing the suit of the plaintiff, bath the Courts below have rightly addressed themselves to the question whether the purchase by the

plaintiff, during the pendency of the mortgage suit and subsequent proceedings, was affected by the principle or doctrine of lis pendens. A plea

appears to have been raised that the defendant, who was the Court auction purchaser at the mortgage sale, was merely a name lender for the

mortgagee, but this is not now praised, and the learned Counsel for the appellant is willing to argue the matter on the assumption that the defendant

might be a total stranger. It is contended that, nevertheless, the principle of lis pendens will not apply to affect the rights of the plaintiff, because the

sale in favour of the plaintiff was not due to any transaction inter oivos or action of the parties,, but was an involuntary sale in the execution of the

decree in S.C. No. 75 of 1950 against one of the two brothers.

It seems to me to be very clear that this contention of the plaintiff (appellant)must fail. There can be, no doubt, I think, that the sale in favour of

the plaintiff, was affected by the doctrine of lis pendens. The point is amply concluded by authority, and S. Subba Rao Vs. Mangavalli

Venkataseshacharlu and Another, , will itself be sufficient, as it is almost identical upon the situation and the facts. Satyanarayana Rao, J., held that

where a property was sold and purchased by a party in execution of his decree during the pendency of a mortgage suit in respect of the same

property, and there is also an independent purchase by the mortgagee in Court auction sale, the original decree-holder having purchased the

property pendente lite must be regarded as the representative-in-interest of the judgment-debtor, and hence bound by the mortgage decree and

further proceedings connected therewith. I may also refer to Radha Madhut Holder v. Monohnr Mukerji L.R. (1888) 15 IndAp 97 : ILR 15 Cal.

756 (P.C.), for the enunciation of the same principle that a purchaser of the property in execution of a simple money decree is bound by the

proceedings taken by the mortgagee, pending which his purchase had been made. Another authority in illustration of the same principle, with

regard to the scope of Section 52 of the Transfer of Property Act, is the Bench decision in Seetharamanujacharlu v. Venkatasubbamma ILR Mad.

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The Second Appeal, therefore, fails. Learned Counsel for the appellant desires me to record or recognise the equities arising in favour of the

appellant, because there are also other items of property subject to the mortgage which have not been proceeded against. I do not see how there

is scope, within the framework of the legal rights affecting the present parties with regard to the present property, to make any specific provision

for this. The appellant, is, of course, free to work out his own rights, if any, against the other parties liable for the mortgage debt, who have

escaped that liability to his disadvantage. The parties will bear their own costs here.

No leave.