Mathevan Pillai Kumaraswamy Pillai vs Subramonia Iyer and others

T.K. Joseph, J.—The facts necessary for the disposal of this appeal may be briefly stated. The plaintiff, as assignee of the decree in O.S. No. 475 of 1095 of the District Munsiffs Court of Nagercoil, purchased in execution of the said decree the property described in the plaint schedule along with certain other items and obtained delivery of possession of the same. This decree was obtained on the basis of a hypothecation bond dated 28-3-1083 executed by Isakimuthu Chettiar, the original owner of the property. He had sold the property to Kalian Pillai in the year 1088 under Ext. A and the latter sold it to one Thampiah in 1090 under Ext. VIII. Though the suit was filed only in the year 1095, Thampiah was not made a party to the same. His heirs sold the property to defendant 2 on 12-1-1104 under Ext. XIII and at the time when the plaintiff sought delivery of possession, defendant 1, a mortgagee from defendant 2 was in possession. He contended that he could not be dispossessed in execution of the decree which was not binding on his mortgagor or her predecessor in interest and the contention was upheld directing redelivery of the property to him.

Alleging that the sale-deed to Kaliam Pillai and Thampiah were sham documents which had not come into effect, the plaintiff instituted this suit for setting aside the order upholding the 1st defendant''s claim and for recovery of possession of the property from defendant 1 in the alternative, it was prayed that defendant 1 should be compelled to redeem the plaintiff. Defendant 1 surrendered his mortgage right to defendant 2 during the pendency of the suit and the contest was between the plaintiff and defendant 3 who was one of the 2nd defendant''s heirs. She contended ''inter alia'' that the sale deeds to Kalim Pillai and Thampiah were valid, that the plaintiff was not entitled to recover possession on the strength of the sale in execution of the decree to which Thampiah was not a party and that she was not liable to redeem the plaintiff. The trial Court upheld the defence and dismissed the suit and the plaintiff has preferred this appeal from the decree.

The appellant did not press the prayer for recovery of possession on the ground urged in the plaint viz., that the sale to defendant 2 as well as to her predecessor-in-interest were sham and inoperative transactions. The only point urged in appeal was that even though Thampiah was not a party to O.S. No. 475 of 1095, the court-sale in execution of the decree gave a fresh cause of action to the plaintiff to recover by sale the proportionate amount chargeable on the property, in case the defendants were not willing to redeem him. It was urged that this remedy was available to the plaintiff though a suit on the original cause of action was barred on the date of the plain in the suit.

This case is in some respects different from that of a prior mortgagee suing without the puisne mortgagee on the party array and purchasing the property in execution of such a decree. In the latter case, the sale of the equity of redemption would be effective as the mortgagor could represent the equity of redemption subject to the prior and puisne mortgages and as purchaser of such equity of redemption the purchaser could redeem or ask to be redeemed. In such a case the puisne mortgagee who was left out in the earlier suit could not claim higher rights than would have been available to him if he had been made a party to the suit. In a case like the present one, the equity of redemption is totally unrepresented in the earlier suit. In - ''Neelakantan v. Ummini Pillai'', AIR 1952 TC 295 (A) this Court upheld the position that when a decree for realisation of the mortgage amount proves infructuous on account of the absence of necessary parties to the suit, a second suit for the same relief with the necessary parties on record was competent provided. the same was brought within the period of limitation, viz., 12 years from the date on which the bond became enforceable.

Learned counsel for the appellant relied on the decision on the Madras High Court in - Sambasiva Ayyar Vs. Subramania Pillai and Others, in support of his argument that the purchase in court-sale furnished a fresh cause of action against the vendee of the property who was left out in the former suit. It was held in that case that the auction-purchaser had two capacities ''qua'' mortgagee and another ''qua'' purchaser of the items-mortgaged to him, and that in his latter character he got a fresh cause of action from the date of his purchase or from the date of obstruction to his obtaining possession. This proposition has not been accepted by other High Courts in India and the Bombay High Court at least in one reported case viz., - Ganapa Rama Hegde Vs. Timmaya Narayan Hegde, declined to follow this decision. As pointed out by Broomfield J. in the case mentioned above, the decision in - ''Sambasiva Ayyar v. Subramania Pillai (B)'' is to a considerable extent based on the ground of hardship which is not a safe ground. The earlier decisions of the Madras High Court such as - ''Mulla Vittil v. Achuthan Nair'', 21 Mad LJ 213 (D); - (Chinta) Chandramma and Another Vs. Gunna Seethan Naidu, and - M.N. Nagendran Chettiar Vs. Lakshmi Ammal, do not support the view taken in - ''Sambasiva Ayyar v. Subramania Pillai (B)'', The Allahabad High Court in - Banwari Lal and Another Vs. Nand Ram and Others held that if a fresh suit on the original cause of action was barred, the plaintiff could not succeed in the second suit. The Calcutta High Court also accepted this view in - Dhapubai Mini Vs. Chandra Nath Chakravorty and Others, ; - Guruprasad Sukul and Another Vs. Tarini Charan Debnath and Others, ; - Jagat Chandra De Vs. Abdul Rashid and Others, and - Surendralal Kundu Vs. Ahmmad Ali, . This was the view that was followed by the High Court of Travancore also in - ''Oonnittan Ouseph v. Narayanan Krishnan'', 7 Trav LT 325 (L). We do not feel justified in accepting the proposition laid down in - ''Sambasiva Ayyar v. Subramania Pillai (B)''.

It was not disputed that on the date of the institution of this suit an action for recovery of the amount under the hypothecation bond of 1083 would be barred by limitation. The appellant cannot compel the defendants to redeem him. As stated by Sir Dinshaw Mulla in his commentary on the Transfer of Property Act, the view for which the appellant contends is open to the objection that the right of redemption is a right and not a liability and it is not easy to see how a person holding such a right can be compelled to exercise it on pain of eviction. The suit must therefore fail on the ground of limitation.

Respondents 4, 5, 11, 12 and 13 have preferred a memorandum of cross-objections regarding their costs in the lower Court which were disallowed by the decree. We do not see any reason to interfere with the discretion exercised by the lower court in this matter.

In the result the decree of the court below is confirmed and the appeal and the memorandum of cross-objections are dismissed with costs.