Durgayya vs Anantha and Others

On finding it stated in the judgment of the lower Appellate Court (para. 10) that the case had been argued before that Court ""mainly on the 6th

issue and the correctness or otherwise of the decision of the lower Court under this issue is the only point for determination in this appeal,"" the

appellant''s vakil has confined his contention in this Court to the same point.

The question is, therefore, whether the lower Courts are right in holding to be invalid as against the respondents the sale in execution of the

decree E obtained by plaintiff against Timmappa Chetti, the father of second and third respondents?

The decree in question was obtained in December 1882, i.e., after the coming into operation of the Transfer of Property Act, No. IV of 1882.

Section 99 of that Act disentitles a mortgagee who attaches property in execution of a decree for the satisfaction of any claim ""whether arising

under the mortgage or not"" from bringing such property to sale ""otherwise than by instituting a suit u/s 67 of the Act.

The property in the present case was attached by appellant, who is a mortgagee, in execution of a decree obtained by him for arrears of rent

due for three years from his mortgagor, and was subsequently sold in execution of the same decree, when appellant himself became the purchaser.

The present case is no doubt distinguishable from Kaveri v. Ananthayya I.L.R.10 Mad. 129 in that in the latter case no sale had actually taken

place. Moreover in Kaveri v. Ananthayya, it does not appear that there was a decree making the debt a charge upon the land. But the mere fact of

the decree making the debt a charge on the property cannot be held to be sufficient to exclude the case from the rule contained in Section 99 of the

Transfer of Property Act; nor is the fact of a sale having taken place sufficient to do so, compare the judgment of Kernan, J., in Sathuvayyan v.

Muthusami ILR 12 Mad. 325 where he says, ""the fact that the sale took place before the suit (i.e., the suit to get back possession of the property

sold) was filed cannot give validity to the sale, if it was contrary to the provision of Section 99.

We are of opinion that the decrees of the lower Courts are correct and that this appeal must be dismissed with costs.