P. Balamani Ammal vs K.N. Rama Aiyar and Others

Venkatasubba Rao, J.—The plaintiff brought the suit to enforce two mortgages which he alleged were executed by the 1st defendant in

favour of certain third parties from whom he obtained assignments of those mortgages. The 1st defendant filed a written statement denying that any

part of the sum of Rs. 31,921-7-8 for the recovery of which the suit was filed was due and making various charges of gross fraud against the

plaintiff. On the 6th August, 1921, the case came on for hearing when the 1st defendant''s vakil applied for an adjournment on certain grounds to

which we shall presently refer, but the adjournment was refused. The vakil then said he had no instructions and the Subordinate Judge passed an

ex par(� decree for the sum claimed against the 1st defendant. We are not concerned with the other defendants but we may mention that the

2nd and 3rd defendants were impleaded as subsequent mortgagees and that the 9th defendant obtained an assignment subsequent to the suit of the

2nd defendant''s mortgage. The 1st defendant has filed this appeal.

Mr. T. M. Krishnaswami Aiyar, the vakil for the plaintiff-respondent, has taken an objection in limine to the maintainability of the appeal. He

contends that his client has become the purchaser of the 1st defendant''s interest in the property and that as the effect of it would be that besides

being a respondent his client takes also the place of the appellant, the appeal cannot go on and, must be dismissed.

Before examining this contention, we shall first deal with the appeal as if no such event has taken place. The present suit was filed on the 10th of

December, 1919, and during its pendency the plaintiff purchased in Court-auction held in execution of a money-decree passed against the 1st

defendant, the right, title and interest of the 1st defendant in the suit properties. The purchase by him was on the 3rd March, 1921. The 1st

defendant thereupon made an application to the District Munsif s Court, Kumbakonam, which held the auction, to set aside the sale on certain

grounds. This application was pending on the 6th of August, 1921 when the present suit came on for hearing. The 1st defendant''s vakil applied for

an adjournment on the ground that he was led to believe that the suit would not go on till the petition to set aside the sale was finally disposed of,

that, as a matter of fact, the application before the District Munsif s Court came on for hearing on the 3rd of August, 1921, but was adjourned to

the 31st of August in order that the parities might take the necessary steps to get the application transferred to the Sub-Court, Kumbakonam, so.

that the suit and the application might be heard together and that for these reasons his client who was ready to proceed with the suit on previous

occasions had not taken the necessary steps to be ready with her evidence on that day. The 1st defendant was not in Court, the Judge refused .

the application for adjournment and passed an ex parte decree. The 1st defendant thereupon made an application to set aside the ex parte decree.

That application was again refused. The 1st defendant has not only filed an appeal against the decree itself (Appeal No, 348 of 1921), but she has

also filed an appeal against the order refusing to set aside the ex parte decree (A. A. O. No. 137 of 1922). We are clearly of the opinion that the

Subordinate Judge ought to have granted the adjournment prayed for. The vakil for the plaintiff as well as the vakil for the 1st defendant gave

evidence when the application to set aside the ex parte decree was heard and the 1st defendants vakil deposed that the vakil for the plaintiff had

represented to the Court at a previous hearing that the suit might be adjourned pending the disposal of the execution application in the District

Munsif''s Court. This statement was no doubt denied by the plaintiff''s vakil. But without deciding which of the two conflicting versions is correct,

we are satisfied that the defendant''s vakil bona fide believed that the case would not be heard on the 6th of August and had sufficient grounds for

entertaining that belief. When the petition to set aside the sale was taken up on the 3rd August 1921 by the District Munsif, it is clear that it was

adjourned to the 31st August in order to enable the parties to get the petition transferred to the Sub-Court. Whether this suggestion regarding the

transfer emanated from the 1st defendant''s vakil or was made by the Court is immaterial. These facts show that the 1st defendant could have

honestly and bona fide come to the conclusion that it was not necessary to be ready to proceed with the case on the 6th August. If nothing further

has transpired we would have no hesitation in reversing the decision and remanding the suit for trial.

But Mr. Krishnaswami Aiyar contends that inasmuch as he himself became the purchaser of the equity of redemption the appeal must be

dismissed. The Court sale was on the 3rd of March 1921. It was confirmed by the Munsif on the 25th October, 1921. It is unnecessary to refer to

the subsequent history of this dispute for it is sufficient to say that the result of all that happened was, that the confirmation made by the Munsif was

allowed to stand. Order 21, Rule 92, Civil Procedure Code, says that where an application to set aside a sale is made and disallowed the Court

shall make an order confirming the sale and thereupon the sale shall become absolute. u/s 65 of the Code where Immovable property is sold in

execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the

property is sold and not from the time when the sale becomes absolute. The property therefore became vested in the plaintiff on the 3rd of March,

1921. Now let us see what the argument of Mr. Krishnaswami Aiyar leads to. He says that his client became the purchaser of the 1st defendant''s

interest and the appeal should be, therefore, dismissed. In other words, he says that his mortgage has become satisfied by reason of the purchase.

The logical deduction from this would be, that if on the 3rd March, 1921. his mortgage became satisfied and he had no claim to prosecute, the suit

ought to have been dismissed on the 6th of August, 1921 when the Sub-Judge delivered judgment. The plaintiff contends that during the pendency

of the suit as the result of an event that happened, the mortgagor''s interest in the property passed to him and this operated to discharge the

mortgage; and in our opinion the result of this contention will be not that the appeal but that the suit itself should be dismissed. When the plaintiff

comes to Count and says his claim has been satisfied we have no alternative but to dismiss his suit. That is what had happened here, and the only

course open to us is to allow the appeal and dismiss the suit. We must here observe that the plaintiff states that he has entered into some

arrangements with the defendants 3 and 9 and does not desire to have in this suit any relief against them.

In the circumstances, however, we make no order as to costs, but as the 1st defendant has filed the appeal in forma pauperis we direct that the

Court-fees payable to the Government shall be paid by the plaintiff and the 1st defendant in equal moieties. The reason for making both the parties

bear equally the said Court-fees is this. We cannot now assume that the allegations made by the defendant in her written statement are true and

that the suit at its very inception was bad nor can we assume that the plaintiff purchased the interest of the 1st defendant in the suit properties with a

view to stifle her defence. Though we are allowing the appeal, we cannot, in the circumstances, adjudge the plaintiff liable for the entire amount of

the Court-fees payable to the Government.