Pyli and Another vs Varkki Jacob and Others

Gangadhara Menon, J.—Defendants l and 2 are the Appellants.

The facts necessary for purposes of this appeal may briefly be stated thus. The plaint property is a portion of S. No. 624/1A in Kuvattupuzsha Fakuty. The entire area comprised in this survey number about 15 acres in extent originally belonged to one Komaru Thirumulpad. He sold the property to one Yoyakki and others in 1090. For balance of consideration under the sale deed the vondees executed a hypothecation bond of even date in favour of Thirumulpad for RS. 6492� Thirumulpad died leaving a will by which, he distributed the amount under the hypothecation bond in favour of various legatees.

Yoyakki and deceased Mathai Varkki father of the Plaintiffs and Defendant 4 had made some joint acquisitions. There were also certain debts charged on the properties acquired which Yoyakki and Mathai Varkki had to pay in equal shares. When claims were made for the discharge of these debts Matbal Varkki had to pay amounts in excess of his share of the debts. Subsequently Yoyakki and Mathai Varkki partitioned their joint acquisitions under Ex. A partition deed dated 9-4-1095. A schedule items in Ex. A were allotted to Yoyakki and B schedule items therein were allotted to Mathai Varkki. Yoyakki agreed to discharged all the debts then subsisting on the property partitioned. For the excess amount of Rs. 1351 that Mathai Varkki had already paid over and above his share of the debts and also as indemnity for any loss that Mathai Varkki may sustain on account of the failure of Yoyakki to discharge the debts agreed to be paid by him under EX. A, partition deed the plaint schedule property which was scheduled as 0 in Ex. A, was given as security.

The devices under the will of Thirumulpad filed separate suits for the amounts due as balance of consideration and obtained decrees. These decrees are Exs. F to F (6) and J. The father of Defendants 1 and 2, one Pathrose Kathauar obtained assignments of Exs. F, F (1), J. F (2), and F (7) decrees and brought to sale different portions of the entire area of 15 acres except 1 acre and 75 cents on the western extremity, including the plaint property and purchased them in court auction and obtained delivery. Exhibits L, L (1), L (2) and L (5) are the auction lists in Exs. P. F. (1), P (2) and F (7) cases. These show that Pathrose Eathanar purchased the properties in 1108.

Yoyakki failed to fulfil the terms of Ex. A and therefore Mathai Varkki sued on the basis of Ex. A and obtained a decree for the amounts due, charged on the plaint schedule properties in O. S. 53 of 1103. Exhibit B is the decree of the trial Court in that case and Ex. 0 is the decree passed by the High Court in appeal.

After the decree Mathai Varkki died and his legal representatives in execution of the decree purchased the plaint property on 4-5-1110. They applied for delivery of the property in pursuance of Ex. D sale certificate. The father of Defendants 1 and a filed Ex. E, obstruction petition, stating that he was in possession of the plaint property under the prior court sale. This obstruction petition was allowed. Therefore, the Plaintiffs have brought the present suit for the redemption of the plaint property on payment of the proportionate mortgage amount or in the alternative if the Defendants are not willing to be redeemed for the recovery of Rs. 1851 and interest amounting to half the principal charged on the plaint properties.

The Defendants 1 and 2 resisted the plaintiffs'' right to redeem or to recover the amounts prayed for on various grounds including that the Exs. B and c decrees and the execution proceedings in pursuance thereof are fraudulent and collusive. The learned Judge repelled these contentions and gave a decree to the Plaintiffs to redeem the plaint property on deposit of Rs. 3187-chs-2214 cash in Court for payment to Defendants 1 and 2 subject to the condition that if Defendants 1 and 2 chose to exercise their rights of paying off the amounts due to the Plaintiffs, viz., Rs. 2036� within three months from the date of the decree," Plaintiffs will be debarred from executing the decree for redemption.

It is evident from Exs. P. P (1), P (7) and 3 that in the decrees obtained by the legatees of Thirumulpad, Mathai Varkki who was a prior mortgagee of the properties was not impleaded. In the decrees obtained by Mathai Varkki on the basis of Ex. A the prior mortgagees were also not impleaded. This is therefore a case in which the prior and subsequent mortgagees have sued and obtained decrees and purchased the mortgaged property in court-auction without impleading each other in the respective suits. The Full Bench decision reported in 23 T. L. J. 263 is clearly applicable to the facts of this case. It was laid down in that decision that where the puisne hypothecate auction-purchaser is the later purchaser his remedy is to file a suit to redeem the prior mortgagee. It was also laid down that the prior mortgagee auction-purchaser, will have the right to redeem the subsequent mortgagee auction-purchaser, retaining possession of the hypothecated property. Therefore the decree passed by the Court below is in accordance with law.

It is however contended that though the Plaintiffs in this case are entitled to redeem and discharge the prior mortgage debt, they are not entitled to recover possession of the properties from the prior encumbrancer auction-purchaser who had obtained possession through Court in execution of his decree. We do not think that this contention is sustainable. The point raised by the learned advocate for the Appellants is covered by the Full Bench decision cited above.

The learned advocate for the Appellants has stated before us that if the Plaintiffs are found to have the right to redeem and obtain possession of the properties and Defendants 1 and 2 are not willing to be redeemed but are prepared to pay the money due to the Plaintiffs. This amount has been fixed by the lower Court as Rs. 2026�. The lower Court under its decree gave three months time to Defendants 1 and 2 to pay the amount. This time has already expired, The learned advocate for the Appellants prays that the time may be extended and the Appellants may be permitted to pay the amount within a reasonable time from the date of this Court''s decree. In the circumstances of this case, we think that this prayer of the Appellants may be granted. Therefore, in modification of the decree of the lower Court we extend the time to two months from the date of this Judgment. If the Defendants 1 and a would choose to exercise their rights to pay off the Plaintiffs by depositing in Court for payment to them Rs. 2026� within two months from this date, Plaintiffs will be debarred from executing the decree for redemption granted by the trial Court. If, however, the abovesaid amount is not deposited for payment to the Plaintiffs within the time stipulated by us the Plaintiffs will be entitled to redeem the plaint property on the terms of the lower Court''s decree. In case of redemption, the Plaintiffs will also be entitled to mesne profits as decreed by the Court below.

Subject to the above modification, the decree of the lower Court is confirmed and this appeal is dismissed with costs.