Easwaran vs T.K. Venkatachalam and Others

V. Kanagaraj, J.—The above civil revision petition is directed against the fair and decretal order dated 10.11.1993 made in E.A. No. 653

of 1992 in E.P. No. 271 of 1989 in O.S. No. 634 of 1977 by the Court of District Munsif, Tiruppur, thereby allowing the said execution

application in favour of the first respondent herein.

The averments of the said application filed by the first respondent herein who is the petitioner before the lower court are that, he is the absolute

owner of the schedule mentioned property; that he took 2/3 rd share of the entire property belonging to the respondents No.2 to 8 in auction in

E.P. No. 489 of 1978 in O.S. No. 706 of 1977 on the file of the Court of Subordinate Judge, Coimbatore (A suit for recovery of money filed by

R. Venkidusamy Chit Funds against V.T.V. Raghunath Rao and others). Then, he filed a partition suit for dividing his 2/3rd share in the entire

property consisting of vacant area and buildings as per the suit in O.S. No. 58 of 1982 on the file of the Court of Subordinate Judge, Tiruppur, and

a preliminary decree followed by a final decree had been passed in the said suit allotting the petition mentioned property and the terrace and the

tiled building located on the North of the petition mentioned property to the petitioner.

The further case of the petitioner before the lower court was that, filing E.P. No. 18 of 1983, he also took delivery of possession of the petition

mentioned property on 13.9.1983 by order of the court.

While so, one Rajamani Ammal filed a suit in O.S. No. 292 of 1990 in the Court of Subordinate Judge, Tiruppur, and brought the property

located to the North of the petition properties for sale as per E.P. No. 110 of 1988 and one R. Venkitaswamy was the successful biddeer in the

court auction and took delivery of possession of 1800 sq.ft. North of the petition mentioned property.

The further case of the petitioner as put forth in the lower court is that, on 15.7.1992, the petitioner was given to understand that in pursuance of

an equitable mortgage created by the respondents Nos.2 to 8, therein in favour of the first respondent the said property had been brought for sale

and as per the sale held on 19.6.1990, the 9th respondent, the court auction purchaser is said to have taken delivery of possession subsequently,

that since on the date of sale on 19.6.1990, the respondents Nos.2 to 8 did not at all have any title over the petition mentioned property and it was

the petitioner who was the absolute owner and in possession of the same, the said execution conducted pertaining to the petition mentioned

property and its subsequent court auction sale are not binding on the petitioner; that the first respondent suppressing the petitioner''s right in the

petition mentioned property and without impleading him as a party to the execution proceeding and acting in collusion with the other respondents,

has created records to the effect that they got delivery of possession of the petition mentioned property; that all the said proceedings are not biding

on the petitioner; that knowingly the right of the petitioner over the petition mentioned property, the first respondent allowed the respondents Nos.2

to 8 even to withdraw the amount from the court and in the above circumstances, unless the sale dated 19.6.1990 is set aside and proper relief of

restitution is granted, the petitioner will be put to a lot of inconvenience and hardship and would ultimately pray for declaring the court auction sale

dated 19.6.1990 as null and void and to order delivery of possession of the petition mentioned property by way of restitution.

In the counter statement filed by the first respondent therein besides generally denying the allegation of the petition would further allege that the

petitioner has not locus standi to file the application u/s 47, C.P.C., since he is a third party to the proceedings and since he is not a judgment-

debtor or decree-holder or auction-purchaser in the Execution Petition No. 271 of 1989 he cannot invoke Section 47, C.P.C., that the respondent

obtained the decree against M/s. T.V. Devaji Rao and Brothers and the said properties belonged to them; that the respondent filed a suit in O.S.

No. 634 of 1977 on the file of the Court of Subordinate Judge, Coimbatore and obtained the preliminary decree on 20.10.1977. and subsequently

a final decree was passed on 19.8.1980 and in the meanwhile, on account of the introduction of the Amendment Act 34 of 1981, since the District

Munsif''s Court came to he recognized having jurisdiction over such suits, this respondent filed E.P. No. 271 of 1989 against T.V. Devaji Rao and

Brothers and brought the properties for sale meticulously following the rules and with wide publicity and the said properties of the judgment-debtor

having been sold in court auction on 19.6.1990, the 9th respondent being a successful bidder, the same came to be confirmed on 31.8.1990; that

this respondent filing a cheque petition for a sum of Rs. 21,552 in the court, also got the cheque; that the judgment-debtors also withdrew the

balance of the sale consideration; that a third party as the petitioner cannot question or agitate the alleged irregularity in the conduct of sale and that

the court becomes functus officio and no order could be passed in the present application.

In the counter filed by the 5th respondent besides formally denying all the allegations of the petition regarding the petitioner''s right of taking in

auction 2/3 rd share of the properties and testifying the delivery of possession to the petitioner and admitting the case of the first respondent and

attributing the burden of proof of the other allegations for the petitioner, would ultimately pray for dismissing the petition.

In the counter filed by the 9th respondent, he would justify the purchase of the petition-mentioned properties on 19.6.1990 at Rs, 1,01,500 in

court auction held in E.P. No. 271 of 1989 and the said auction had been held in accordance with law and on confirmation of the sale by auction,

filing R.E.A. No. 1183 of 1990, the delivery of possession had also been obtained and from that day onwards, he is in possession and enjoyment

of the property letting out the same on lease and paying the municipal taxes, etc. and the application has been made mala fide and in order to

trouble this respondent the court auction purchaser that the purchase by him was valid, and binding; that the petitioner was never in possession of

the petitioner was never in possession of the petition mentioned properties nor paid the tax, that the respondent Devaji Rao and; others had

created an equitable mortgage in favour of the first respondent/Bank on deposit of title deeds, and the petitioner had full knowledge of the same;

that according to the mortgage decree, the property was brought for sale by the first respondent through the court, this respondent took in auction

and got delivery of possession also and suppressing all these facts, the petitioner has given the false petition and the same is not valid in law.

It would also be further averred by this respondent that it was taken in open auction by this respondent and it is false to allege that in collusion

with the respondents Nos. 1 and 3 and others, nominally he took it in auction; that the petitioner had not impleaded the defendant in O.S. No. 634

of 1977 who are necessary parties to the proceedings; that it is further false to allege on the part of the petitioner that this respondent is in

possession of the petition mentioned properties either in an unreasonable or illegal manner; that the burden of proof to the effect that the petitioner

is the owner, is heavily on the petitioner and that the petitioner is not entitled to any relief and would ultimately seek for dismissing the application

with costs.

With the above averments, on the part of the petitioner, two witnesses have been examined as P.Ws. 1 and 2; P.W. 1 being the petitioner

himself and P. W.2 one Balakrishnan and on the part of the respondents, the 9th respondent has testified himself before the lower court as R-1. So

far as the documentary evidence is concerned, five documents have been marked as Exs.A-1 to A-5. Ex.A-1 bearing the copy of the Execution

Petition in R.E.P. No. 469 of 1979 in O.S. No. 706 of 1977; Ex.A-2 being the decree obtained in the partition suit in O.S. No. 58 of 1982;

Ex.A-3 being the order passed in I.A. No. 711 of 1982 in O.S. No. 58 of 1982;Ex.A-4 being the copy of the order passed in E.P. No. 18 of

1983 and Ex. A-5 being the sale receipt. On the part of the respondents therein, 4 documents would be marked as Ex.B-1 to Ex.B-4 Ex.B-1

being the sale receipt; Ex.B-2 and Ex.B-4 being the encumbrance certificates and Ex.B-3 being the property tax receipt.

Having regard to the above evidence placed on record before the lower court, the court below in consideration of the same and applying the

evidence to the caste put up by the contending parties and in application of the position of law to the facts and circumstances of the case and

appreciating the evidence in its own way, would ultimately decide allowing the said application, It is only challenging the decision made by the

lower court in allowing the said application, the above civil revision petition has been filed by the 9th respondent auction-purchaser mainly on

grounds such as, (i) that the application filed u/s 47, C.P.C. is not maintainable since the petitioner before the executing court was not a party, (ii)

that the lower court has erroneously concluded saying that Article 127 of the Limitation Act could apply to the revision petitioner herein, that the

suit in O.S. No. 634 of 1977 is earlier in point of time when compared to O.S. No. 706 of 1977 on the file of the Court of Subordinate Judge,

Coimbatore, that the former is a mortgage suit and the latter a money suit and so far as the earlier suit is concerned, the mortgage had been created

by respondents No.2 to 8 herein in which the preliminary decree had been passed on 20.10.1977 and the final decree on 19.8.1980, (iii) On the

other hand in the latter money suit, the decree had been passed on 24.11.1977 in favour of the chit company and the respondent had purchased in

the auction sale held on 1.8.1979 in E.P. No. 489 of 1978 u/s 52 of the Transfer of Property Act is clearly attributed which places restriction on

the transfer of any property, once a suit in which any right to such immovable property directly and specifically in question is pending. In application

of Section 52 of the Transfer of Property Act, the auction sale held in E.P. No. 489 of 1978 in O.S. No. 706 of 1977 by the Court of Sub Judge,

Coimbatore in favour of the petitioner is hit by the doctrine of lis pendens and he gets no title whatever over and above or in priority to the title of

the revision petitioner, (iv) that the application is also not maintainable u/s 144, C.P.C. since for attracting Section 144, a decree or order should

be varied, reversed in an appeal, revision or other proceedings or set aside or modified in a suit instituted for the purpose.

During arguments, the learned senior counsel and the Additional Advocate General Sri T.R. Rajagopal, appearing for the revision petitioner

would contend that the 9th respondent in the Execution Petition is the civil revision petitioner in the above C.R.P.; that the petitioner herein is the

mortgage decree auction purchaser and the first respondent is the money decree auction purchaser; that the application has been filed by the first

respondent in the court below in E.P. No. 271 of 1989 in O.S. No. 634 of 1977 which are concerned with the mortgage suit and execution

petition and that the first respondent is unconcerned with either of the above suit or execution petition. The application has been filed u/s 47,

C.P.C. to declare the mortgage court auction sale dated 19.6.1990 null and void and for delivery of possession of the petition mentioned property

by way of restitution; that he was not made a party to the E.P. in the mortgage suit and seeking for a declaration of the auction sale of the mortgage

decree is bad; that the money decree auction purchaser was not made a party that any order pursuant to the mortgage decree is pendente lite; that

the court be-'' low auction sale is lis pendens; that the mortgage suit had been filed on 15.6.1977 even prior to the money suit and in the mortgage

suit, preliminary decree had been passed on 20.10.1977 and the final decree in 1980; that in the money suit, the decree had been passed only on

24.11.1977; that any sale after the institution of the suit on 15.6.1977 implied lis pendens and once it is lis pendens, the purchaser need not be

impleaded; that any order passed, it would bind the purchaser; that the basis of the total order passed by the court below is against Section 52 of

the Transfer of Property Act; that the money decree was subsequent that to the mortgage decree; that the lower court has not applied the

principles contemplated u/s 52 of the Transfer of Property Act and would cite a judgment reported in Samarendra Nath Sinha and Another Vs.

Krishna Kumar Nag, and would further argue that in a case of this nature, subsequent to the mortgage suit whatever right or equity or redemption

one possesses, it goes and would cite a case reported in Kedar Nath Lal and Another Vs. Ganesh Ram and Others, .

The learned Senior Counsel would also cite another judgment to stress this point i.e., reported in Muthulakshmi Vs. A.R. Sahasranam and

Others, . The learned senior counsel would also cite yet another judgment reported in Eni Ammal Vs. Soosai Michael Mudaliar, and would argue

the documents and lis pendens - bona fide purchaser for value that necessary to - need not be made a party at all - bound by the decree. Yet

another judgment reported in Muthulakshmi Vs. A.R. Sahasranam and Others, , relied upon. For the purchase of the money suit pending, the case

reported in Annamalai Mudaliar Vs. Kuppuswamy Reddiar, would be referred wherein it has been held that the money decree-holder purchasing a

mortgage suit property is bound by the mortgage decree and would cite two more judgments reported in (i) Parameswari Din v. Charan (1937) 2

M.L.J. 359 and (ii) A. Rajagopala Naicker v. T. Jayarama Naicker 1974 T.L.N.J. 455. There is no reference to Section 11, principle at all, but

held in such a situation the money decree-holder is bound by the mortgage decree and the learned Counsel would say that the lower court has not

considered the principles embodied in Section 52 of the Transfer of Property Act. Citing yet another judgment reported in A.M.E.P. Mohammed

Ismail and Others Vs. S.A.S. Alagappa Chettiar, , wherein it is held that the mortgage suit sold realization attached in the form of cash can be

attached. Here it had already been sold, and would comment that the Judge finds a via-media here which cannot apply to the case in hand. The

learned Counsel would ultimately argue that the money decree purchaser has no right to apply because, he is bound by the mortgage; but the

money decree holder who is the owner of the property must be party to the mortgage proceedings and would end up his argument stating that the

order of the lower court is absolutely against the settled law.

From out of the judgments cited by the learned Counsel it has been held therein that section does not strictly apply to involuntary alienations

like, court sales, but principle of lis pendens applies to such alienations. In the judgment reported in Kedar Nath Lal and Another Vs. Ganesh Ram

and Others, , it has been held that, ""it is true that Section 52, strictly speaking does not apply to involuntary alienations such as, court sale, but it is

well established that the principle of lis pendens applies to such alienation"". In this judgment Samarendra Nath Sinha and Another Vs. Krishna

Kumar Nag, has been considered. It has been further held that the doctrine of lis pendens applies suspicion of strength or weakens of the case on

one side or other -there is however one condition that proceedings must be bona fide - if proceedings are bona fide applicability of Section 52 was

not avoided. The other judgment cited by the learned Counsel reported in Muthulakshmi Vs. A.R. Sahasranam and Others, regarding the said

proposition of law, it has been held that, ""after the institution of a suit for maintenance, the property in suit was sold by private sale and the

purchaser in his turn sold it after the suit was decreed. The subsequent purchaser filed a declaratory suit for permanent injunction. Held, sale held in

execution of maintenance decree was valid and the sale in favour of second purchaser would not prevail over it. Sathuluru Seetharamanujacharyulu

Vs. Narra Venkatasubbamma and Another, , relied on.

The next judgment cited by the learned Counsel for the petitioner is one reported in (1989) 1 L. W. 206, which has been delivered relying

upon A.I.R 1974 Mad. 84 for one and the same proposition. The other judgment reported in Annamalai Mudaliar Vs. Kuppuswamy Reddiar, ,

wherein it has been 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. Thus in the instant case, the sale in favour of the plaintiff-appellant is affected by the doctrine of lis

pendens contained in Section 52 of the Transfer of Property Act (IV of 1882).

In the case reported in Parmeshari Din v. Ram Charan and Ors. (1937) 2 M.L.J. 359, wherein it has been held as follows:

Where a person obtains property by transfer from the defendant pendente lite he should be treated as the representative in interest of the transferor

defendant, and he is bound by the result of the decree. And the mere circumstance that he got possession from the defendant in pursuance of a

transfer, which was invalid as against the plaintiffs cannot detract from their rights under the decree.

The yet another judgment reported is in A. Rajagopala Naicker v. T. Jayarama Naicker and Anr. 1974 T.L.N.J. 455, wherein it has been held

that,

The petitioner obtained a money decree on 20.9.1967 and filed E.P. on 3.6.1969 of attachment and sale of the property in question and ultimately

on 22.10.1970 the petitioner purchased the property in court auction. The sale was confirmed on 25.11.1970. There was a mortgage over the

property, which was subsisting and the petitioner purchased it subject to the mortgage. The mortgagee instituted a suit in 1968 and obtained a final

decree on 26.10.1968 without reference to the sale pursuant to the money decree, the Nidhi brought the property to sale on 23.6.1971 and itself

purchased the property in court auction held for that purpose. The said sale was confirmed on 27.7.1971. In the mortgage suit the petitioner

(money decree-holder) was not a party. There was a race for possession by the two rival decree holders. The lower court was of the view that

purchase of the property by the petitioner as a money decree holder simplictier was affected by the rule of lis pendens as by then the mortgage suit

was pending. This was held as a bar to the petitioner for obtaining delivery of possession. Hence, the C.R.P.

Held: The question has to be approached from practical point of view. The money decree holder, namely, the petitioner was not a party to the

mortgage action. He bona fide pursued his decree, bid at the public sale and got the property and is seeking for possession. Even so, in the other

(proceedings the Nidhi obtained a mortgage decree, but brought the property to sale after the first public sale was confirmed in favour of the

petitioner and thereafter obtained a sale certificate in its favour. Applying the elementary rule that whoever comes first has to be served first, the

money decree holder in the instant case, who pursued his decree earlier and obtained a sale certificate in his favour but prior to the date of sale

certificate obtained by the mortgagee decree holder, has certainly to be preferred for delivery of possession of the suit property. The petitioner

purchased the property for valuable consideration and therefore it will be in equitable to deprive him of possession of the suit property except by

proceeding aliunde known to law. The question whether pendency of the mortgage suit during the time or at about the time when the petitioner

purchased the property in public sale is an irrelevant consideration, as in the words of the learned Judges ""it is elementary law that a persons rights

could not be ordinarily affected by proceedings to which he was not a party"". The court is therefore, of the view that having regard to the

chronology of events the petitioner who has purchased the property in court auction long prior to the date when the Nidhi purchased the same is

entitled to delivery of possession of the property by him.

In reply, the learned senior counsel Sri T.R. Mani, appearing for the respondents would not dispute the facts that are prevalent in the whole of

the case, nor would he dispute the principles related to the doctrine of lis pendens as propounded by the Supreme Court in the cases reported in

Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, and that he is bound by the Supreme Court decisions. Further more, the learned

senior counsel would argue that in the case in hand, it is a mortgage by deposit of title deeds wherein the petitioner has secured a sum of Rs.

10,000 on 27.5.1972 and hence for the principal amount of loan and the interests for a total amount of Rs. 11,431 the suit in O.S. No. 634 of

1977 on the file of the Sub Court, Coimbatore, had been filed by the second respondent herein. The learned Counsel would further argue that

about the same time, another suit in O.S. No. 706 of 1977 on chit transactions had been filed by the creditor wherein money is due by the 4th

defendant. On 8.4:1974 i.e., subsequent to the mortgage which was in the year 1972, that suits have been filed simultaneously and in the money

suit, an enforceable decree had been passed on 24.11.1977; that about the same time, a preliminary decree had already been passed in the

mortgage suit on 20.10.1977.

The learned Counsel would further contend that on 1.8.1979, the court auction sale took place in the money suit in E.P. No. 489 of 1978; that

the auction held on 1.8.1979 was for a sum of Rs. 15,005 as per E.P. No. 489 of 1978, that the interest could be 2/3rd interest in the mortgage

property and the sale was also related to 2/3rd share belonging to the third respondent company; that his client as the court auction purchaser had

become the owner of the 2/3rd share and that on 27.9.1980 even the sale certificate had been issued to him; that about this time final decree came

to be passed in the mortgage suit on 19.8.1980 and from the date of decree, till 1989, no transaction took place regarding the mortgage decree;

that after the confirmation of the sale, the sale certificate had been issued to his client and that he was obliged to file the suit in O.S. No. 58 of 1982

for partition and separate possession in the Court of Subordinate Judge, Tiruppur; that in that suit, on 24.7.1982, a preliminary decree came to be

passed and a commissioner got appointed for division and on his report, a final decree had also taken place and after the passing of the final

decree, he filed the E.M.P. No. 18 of 1983 and he was put in possession by the process of the court in enforcement of a partition decree on

23.9.1983.

The learned senior counsel would further contend that his client took possession of 2/3rd share allotted and the remaining 1/3rd share was still

with the judgment-debtor and the excess amount deposited by the first respondent as auction purchaser was also in the court; that in O.S. No. 292

of 1990 filed by Rajamani Ammal relates to the extent of property to be delivered to her; that for six more years from that date till 1989, nothing

was done when the Bank filed the E.P. No. 271 of 1989 on the file of the Court of District Munsif, Tiruppur for the sale of the mortgage property;

that in the said proceedings, his client was not a party, nor even a notice issued to him in the E.P., the decree-holder filed it only against the original

judgment-debtor; that by the time the E.P. had been filed in 1989, his client had become the owner even 9 years ago; that having already divided

the suit property the preliminary decree and final decree took place and he took possession of the share after 9 years giving some explanation for

the delay and without any reason for not impleading the client as a party and under the pretext that they took an encumbrance certificate in which

his name was not found and subsequently taking yet another plea that they need not implead him at all for lis pendens, etc.

The learned senior counsel would further contend that he took possession through the court, instituted another suit for partition and a

preliminary and final decree had been passed; that the mortgage suit the court auction sale was on 19.6.1990 and the sale was confirmed on

31.8.1990; that even for this he had no notice; that they filed E.A. for delivery of possession; that even in that application, he was not impleaded as

party, the delivery had been given removing him without a notice; that he filed the present E.A. No. 653 of 1992 for redelivery; that he came to the

knowledge of the dispossession on 15.7.1992 and that he filed the application on 10.8.1992 in time, to declare the possession void and redeliver

possession, the lower court said that he does not come under the general rule and that he could say that he comes under the exception and once

the exception is applied, the general rule will go, that is the exception pointed out by Ramprasada Rao, J. The learned senior counsel would point

out that all the cases cited by the other side are all of mortgages which were Registered, but in the case in hand, the mortgage is not registered, but

by deposit of title deeds; that in English law, it is not at all a mortgage, but the Indian law, recognizes it as a mortgage; that the equitable mortgage

is said to have been created on 27.5.1972 with the Union Bank of India and it is not a registered instrument; that his client purchased the property

in court auction sale in 1980 and up to 1989, there was no question raised from any quarter; that the trial court relied on 1974 T.L.N.J. 455. In the

said case, the money decree holder himself is the auction purchaser where as he is a third party purchaser without notice. The learned Counsel

would also cite yet another judgment reported in A.M.E.P. Mohammed Ismail and Others Vs. S.A.S. Alagappa Chettiar, , it has been held by T.

Ramprasada Rao, J. as he then was as follows:

In the case of mortgage by deposit of title deeds, no doubt the mortgagee stands on the same level and footing of a simple mortgagee as is

commonly known and as is statutorily described under the provisions of the Transfer of Property Act, But every creditor should also be shrewd

and alert so that for purposes of safe guarding his own interest, he should alert the public at large and keep them also informed of his rights over the

properties of the judgment-debtors. It is only for such publicity and for the purpose of enabling the general public at large to know such bargains,

though not secret, but not known, that a provision has been made under the Stamp Act read with the Registration Act which enables such a

mortgage by way of deposit of title deeds commonly known as the equitable mortgage, to register the memorandum of deposit with the concerned

Registrar of Assurances so that a public notice may be given of his rights over the concerned property. This safeguard was not availed of by the

respondent in the instant case. Stress is made on the only fact that the respondent is a mortgagee in the usual and popular sense of the term. But a

distinction has to be made between cases where there is a registered simple mortgage over a property and a mortgage by deposit of title deed. The

distinction lies in this. Whilst in the former, case, the public come to know of such an encumbrance, since such mortgages are compulsorily

registerable, in the latter cases in the absence of the registration of the memorandum of deposit, it remains as a bargain known and only known to

the debtor and to the creditor concerned. It is such lack of publicity that distinguishes the two types of mortgages, It is always therefore, advisable

for the equitable mortgagee in order to claim rights on par with the simple mortgagee to cause registration of the memorandum of deposit of title

deeds. It is no doubt optional. In situations like the one with which we are confronted in this case, if the memorandum of deposit is registered the

mortgagee can successfully plead preference over other creditors who by course of law and in equity also should stand behind him and cannot

claim any precedence over him.

If therefore, it is a peculiar draw back which is attached to a mortgage by deposit of title deeds, the question arises in this case whether the

doctrine of lis pendens propounded by the learned Counsel for the respondent would strictly apply. The respondent was pursuing his remedies

under the mortgage as a mortgagee by deposit of title deeds. Equally the other money creditor was pursuing his remedy by filing a suit on the debt

and by seeking an attachment of the property and latterly to bring the attached property to sale. These two courses adopted by the two creditors

of the same judgment-debtor are totally independent of each other and one cannot therefore be said to be hit by the doctrine of lis pendens

particularly in a case where the money suit proceeds without any knowledge or information about the suit based on deposit of title deeds. It cannot

in equity or in good conscience be said to be hit by principle of lis pendens... The decision in Annamalai Mudaliar v. Kuppuswamy Reddiar might

relate to a case where the mortgage was a regular mortgage or a registered simple mortgage. In any event, that is not a case where the mortgage

was mortgage by deposit of title deeds. The principle in the above case would not apply to the instant situation.

But the learned Counsel would argue that the above proposition was before 1972 and that he comes, under the exception reiterated in para No.

12, wherein it is further held as follows:

In my view, having regard to the fact that the court-auction-purchasers were kept in the dark about the rights of the respondent and they having

proceeded bona fide by participating in the public sale by depositing a large sum of about Rs. 75,000 by having perused their rights and secured

the confirmation of such sale and lastly by taking delivery of such property pursuant to the public sale, cannot now be asked to surrender the

property to someone else for no fault of theirs. The fault lies in the respondent because he did not cause a publication to be made of his rights

which he could have done. He could have exercised that option but he did not by registering the memo, of deposit of title deeds. It is in these

circumstances I accept the contention of the learned Counsel for the petitioners that the principle adumbrated in Section 73 of the Transfer of

Property Act would apply and the right course for the respondent would be to have recourse to the substituted security and get relief.

Citing yet another judgment reported in (1991) 2 L.W. 587, the learned Counsel would point out para 17 of the judgment wherein it is held,

It has been repeatedly held that if an execution proceeding is taken against a property without impleading the owner of the property as a party

thereof, the proceedings are null and void and any sale held in such execution is a nullity.

Citing Order 34, Rule 1, the learned Counsel would exhort as to how the exception arises and in a mortgage suit who should be made the

parties and for not being made parties what are the consequences. Order 34, Rule 1 contemplates parties to suits for foreclosure sale and

redemption: Subject to the provisions of this code, all persons having an interest either in the mortgage security or in the right of redemption shall be

joined as parties to any suit relating to the mortgage"". The learned Counsel pointing out that he had not been made a party to the execution

proceedings wherein the suit was for the recovery of an amount of Rs. 11,000 wherein the principal amount was Rs. 10,000 that if he had been

given an opportunity to redeem, he could have saved his property, he would further stated that a right to redeem is the sellers right; He would

further point out that the C.R.P. has not been filed by the E.P. holder, but by the mortgage suit auction purchaser, that is why Ramprasada Rao, J.

said that he should make him a party as per his decision rendered in (1977) 1 M.L.J. 1976. The learned Counsel would also cited yet another

judgment reported in (1937) 2 M.L.J. 359 and would say that it is a case which had been entertained by the Supreme Court.

Citing the Full Bench judgment reported in Sri Jagannath Mahaprabhu Vs. Pravat Chandra Chatterjee and Others, , the learned Counsel for

the respondent would stress that,

Even though the plaintiff is not bound to make a lis pendens transferee a party, still the court has discretion in the matter which must be judicially

exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests and to prevent multiplicity of suits.

Clarifying certain ambiguities, the learned senior counsel appearing for the petitioner would further contend that he is not bound to implead,

since it is hit by Section 52 of the Transfer of Property Act. Here in the mortgage decree and a person who purchase property during the

pendency of the suit, need not be heard, nor made a party. He would also further cite Order 21, Rule 102 and would stress that nothing such as

delay, moratorium or jurisdiction would obstruct in transferring the property in favour of his client. But for Order 21, Rule 102, the learned senior

counsel for the respondent would rebut the contention of the other side stating that the fight is not between the decree holder and the judgment-

debtor so as to attract Order 21, Rule 102, but it is between two wayfarers or two aliens who are totally unconnected with any other legalities that

were concerned with the suit for the execution proceedings.

The facts of the case are that, the petitioner herein is the court auction purchaser of the property from a mortgage decree and the first

respondent is the court auction purchaser of the 2/3rd portion of the same property from a money decree. Hence it is clear that both the petitioner

and the first respondent are only court auction purchasers of one and the same property and none of them is either the creditor or the debtor in any

of the suits. Both the above suits have been filed in the year 1977 and the money suit had been decreed on 24.11.1977 and in the mortgage suit,

the preliminary decree had been passed on 20.10.1977 and the final decree on 19.8.1980. In the meantime, execution petition had been filed and

in the sale held on 1.8.1979, the first respondent became the successful bidder in the auction sale thus, purchasing an undivided 2/3rd share and

the whole of the property being the properties of the debtor and on confirmation of the sale on 27.9.1980, the sale deed had also been executed in

his favour.

The court auction purchaser, the first respondent, having taken delivery of possession of the property concerned (symbolic delivery) as on

11.9.1981 files yet another suit in O.S. No. 58 of 1982 for partition and separate possession of his 2/3rd share in which a preliminary decree had

been passed on 24.7.1982 and the final decree on 31.1.1983 and in quick succession also filing the E.P. No. 18 of 1983, the delivery of

possession had been effected in his favour on 13.9.1983. While such being the case of the money decree auction purchaser, so far as the mortgage

decree is concerned, after passing of the final decree in the year 1980, only in 1989 the Execution Petition had been filed in E.P. No. 271 of 1989

wherein the present petitioner becomes the successful bidder and he was delivered with the property on 30.11.1990.

The first respondent has filed the Interlocutory Application on 10.8.1982 u/s 47 read with and Section 151, C.P.C. stating thereby that only on

15.7.1992, he came to the knowledge to the effect that a delivery had been effected in favour of the petitioner by the court on 30.11.1990 and

testifying the validity of the same, further praying to declare the court auction sale dated 19.6.199 as null and void and further to order delivery of

possession of the petition mentioned property by way of restitution, he has filed the said application. The lower court, before justifying the case of

the first respondent herein on facts also had allowed the said application based on the following judgments reported in

(i) 1980 T.L.N.J. 99; (ii) 1974 T.L.N.J. 455; (iii) 1977M.L.J. 76; (iv) (1991) 2 L.W. 587 and (v) (1991) 1 L.W.726.

In the first judgment cited above, the lower court has overcome the objection raised by the petitioner on ground that only parties to the

proceedings could file the application u/s 47, C.P.C. citing the said judgment wherein it has been made clear that a purchaser of the property in

execution of the decree would be deemed as a party to the suit. A fiction having thus been created that a purchaser of a property in dispute in the

court auction sale in some suit will be deemed to be a party in another suit in which the same property would be brought to sale. Moreover, it is

not only u/s 47, C.P.C. the petitioner has been filed, but also under the general provision converting inherent powers on the court i.e., u/s 151,

C.P.C. Hence, there is absolutely no restriction on the part of the court to have entertained the said application by the first respondent herein.

Moreover, it is a settled proposition that for misquoting the provision of law, the party does not become disentitled to get the relief, Hence it is

hereby concluded that the petition is well maintainable.

Many judgments have been quoted on the part of the learned senior counsel for petitioner to the effect that his suit is a mortgage suit and the

debt is a secured debt that he has a preferential right or priority over the money suit; that the moment the mortgage suit is filed, any of the money

suit filed thereafter or kept pending would be hit by the doctrine of lis pendens, since it is struck by Section 52 of the Transfer of Property Act; that

in execution even an earlier court auction sale purchaser need not be made a party nor heard and brought forth umpteen number judgments in

consummation of the arguments put forth on the part of the revision petitioner. Agreeing with such propositions of law as propounded by the Apex

Court and other High Courts, the learned senior counsel appearing for the respondent would contend that all the judgments cited by the other side

have been delivered based on registered mortgage deed and this case, it s not so. Though classified under the category of mortgage, it was on

deposit of title deed called an equitable mortgage wherein registration is not compulsory and though in English law, it is not recognized as a

mortgage but in Indian Law it is and hence a clear distinction has been made between the two as brought forth by T. Ramprasada Rao, J.

The learned senior counsel for the respondent would further contend that as in other cases, it is not a case wherein the fight is either between

the creditor and debtor or between the purchaser and one of the parties, but both the petitioner and the first respondent are auction sale

purchasers of one and the same property in court auction wherein the court delivered the property in favour of the first respondent on 11.9.1981

and after further proceedings ultimately got delivered on 13.9.1983 and after a lapse of 7 years, the petitioner is said to have been again delivered

with the same property by the court on 30.11.1990 without a notice in the proceedings, nor without making him a party and in the circumstances

that are prevalent, he cannot merely be treated as a money decree holder as against a mortgage decree holder and laid emphasis on the second

judgment cited supra reported in 1974 T.L.N.J. 455, wherein it has been held that in a sale held subsequently by court auction, but the earlier

money decree holder was not a party to the mortgage suit and the court rightly held that, ""it is elementary law that a person''s rights could not be

ordinarily affected by proceedings to which he was not a party"" thus justifying the right of the party, who purchased the property in court auction

long prior to the debt when the other party whose mortgage suit was pending.

The learned senior counsel would entirely rely upon the judgment reported in 1977 M.L.J. 76, wherein a clear distinction has been made

between a registered mortgage and an unregistered mortgage and the question of doctrine of lis pendens would not strictly apply in case of

unregistered mortgage. The creditor under the mortgage as a mortgagee by deposit of tile deeds and the money creditor were pursuing their

remedies by filing suits on the debt and by seeking an attachment of the property and laterly to bring the attached property to sale. These two

courses adopted by the two creditors of the same judgment-debtor are totally independent of each other and one cannot therefore be said to be hit

by the doctrine of lis pendens particularly in a case where the money suit proceeds without any knowledge or information about the suit based on

deposit of title deeds. It cannot on enquiry or in good conscience be said to be hit by the principle at lis pendens. Even the proposition of law as

laid down in (1992) 2 L.W. 587, that, ""if an execution proceedings is taken against a property with out impleading the owner of the property as a

party thereof, the proceedings are null and void and any sale held in such execution is a nullity"" is not without meaning or legality embodied in it.

Here in the instant cases, the civil revision petition has been filed by not the E.P. holder, but by the mortgage suit auction purchaser and as per

the judgment of Ramprasada Rao, J. (as he then was) that he should have made the first respondent a party as per his decision rendered in (1977)

1 M.L.J. 1976. No blunt or blind attachment could be made either for the doctrine of lis pendens or for executing the mortgage decree without

caring to take care of the exceptional circumstances under which a case falls such as one in hand wherein an unregistered mortgage on deposit of

title deed had been made and the said decree being executed by a third party auction purchaser 7 years after the money decree-holder had been

delivered with the property by process of law without making him. a party or even without a notice by the third party could auction purchaser of

the mortgage decree wherein unreasonable latches had occurred and in the above circumstances, one has to resort to the reasoning arrived at by

the learned Judge in [his landmark judgment reported in A.M.E.P. Mohammed Ismail and Others Vs. S.A.S. Alagappa Chettiar, , to decide cases

of this nature and in application of those norms, I am not able to accept the contentions raised on the part of the petitioner so far as the facts of this

case is concerned, which are entirely different from that of the other cases cited on the part of the revision petitioner herein and only those

judgments cited in the fair and decretal order passed by the court below and on the part of the respondent by his counsel herein aptly apply to the

facts of the case in hand and in application of such legal norms this Court has no reason to interfere with the decision arrived at by the lower court.

No serious infirmities or inconsistencies or laxities or lacunae have either occurred or pointed out in the case of the first respondent as projected

before the lower court, nor has there been any patent error of law or perversity in approach pointed out in the appreciation of the evidence and

application of law by the lower court, thus calling for interference by this Court.

In result, the above civil revision petition fails and the same is dismissed. The fair and decretal order dated 10.11.1993 made in E.A. No. 653

of 1992 in E.P. No. 271 of 1989 in O.S. No. 634 of 1977 by the Court of District Munsif, Tiruppur in so far allowing the said application, is

hereby confirmed.

However, in the circumstances, of the case, there shall be no order as to costs.