P.R. Govindaswami Naicker vs Pukhraj Sowcar and Another

Horwill, J.—The appellant in Civil Miscellaneous Appeal No. 21, who is also the petitioner in Civil Revision Petition No. 127, brought a suit

for a permanent injunction restraining the second mortgagee, the first defendant, from bringing the suit property to sale without the intervention of

Court in accordance with the terms of the mortgage bond, on the ground that he was an agriculturist, that the debt had to be scaled down, and that

until that was done the property could not properly be brought to sale. An application was also put in for a temporary injunction during the

pendency of the suit. The first defendant contended that an injunction could not properly be granted and that the remedy of the mortgagor was by

way of an application u/s 69 of the Transfer of Property Act. This contention met with approval in the trial Court; but this Court held in appeal that

the appellant (petitioner) had a right to have his debt scaled down and to be protected from having his property sold until that was done, and that it

was not a sufficient answer to the plaintiff''s objection to tell him that he would have some remedy if a wrong by way of sale was done to him. A

temporary injunction was granted on terms, but the terms were not fulfilled; and so the first defendant brought the property to sale and the

respondent''s in the Civil Miscellaneous Appeal were the purchasers. The plaintiff thereupon sought to amend his plaint by impleading the

purchaser and by seeking a relief against him on the ground that he was the nominee of the first defendant and that the property was purchased

collusively and fraudulently. The trial Court rejected this application; and an, appeal has been preferred against the order refusing to implead the

purchasers and a Civil Revision Petition has been filed against the order refusing an amendment of the plaint.

Section 69, Transfer of Property Act, says that when a sale has been made in the professed exercise of such a power, the title of the purchaser

shall not be impeachable on the ground that no case had arisen to authorize the sale or that due notice was not given or that the power was

otherwise improperly or irregularly exercised; but any person damnified by an unauthorized or improper or irregular exercise of the power shall

have his remedy in damages against the person exercising the power. So that it is clear that unless there was fraud, the only, remedy of the

appellant (petitioner) is by way of damages against the mortgagee who brought the property improperly to sale. If there was fraud, then there may

be a cause of action against the respondents in the appeal to have the sale declared void or to have it set aside on the ground Of fraud. But it will

be clearly improper to club together a suit against the purchasers on the ground of fraud and a suit against the mortgagee on the question of the

amount still due on the mortgage. The suits against the mortgagee and the auction purchasers would have entirely different causes of action and the

subject-matter of the two suits would be altogether different; they could not possibly form the subject of one joint suit against the mortgagee and

the purchasers.

One additional ground for impleading the purchasers is said to be that they would be bound by the doctrine of lis pendens. I doubt very much

whether the doctrine of lis pendens would apply, because the matter in dispute between the mortgagor and the mortgagee is the amount of the

mortgage debt remaining due; but even if it be considered that there was some right in immovable property in question, to apply the doctrine of lis

pendens would only mean that the auction purchaser would be bound by the finding of the Court with regard to the mortgage amount remaining

due. That would not affect his rights; because Section 69 of the Transfer of Property Act would still give the purchasers a right to retain the

property.

The lower Court''s order refusing to allow an amendment of the plaint and to implead the purchasers was therefore a proper one. The appeal is

dismissed with costs and the Civil Revision Petition without costs.