Judgement

Appeal (No. 125 of 1919) from a judgment and decree of the High Court (March 7 and December 19, 1917) varying a decree of the Subordinate Judge of Madura.

The material facts giving rise to the suit are stated in the judgment of the Judicial Committee.

The suit was instituted on September 27, 1911, on behalf of the present respondent, the son of the mortgagor under the mortgage of September 15, 1893, and was continued by him on his attaining his majority. The defendant was the present appellant, the assignee of the mortgage decree of October 1, 1901, and the purchaser (by leave) at the auction sale held on April 22, 1907, under that decree.

By his plaint, so far as was material to the present appeal, the plaintiff (respondent) alleged by paragraph 3 that the property mortgaged was defined by the area (9470 kulis) of the garden lands stated in the mortgage deed, that the boundaries given in the deed which included the whole zamindari of 33,000 kulis were immaterial, and that the lesser acreage alone was sold. By paragraph 8 he alleged that pannai (i.e., home farm) lands measuring about 226kulis did not belong to the mortgagor at the date of the mortgage, but vested in him in 1902 only. The plaint claimed a decree, if the decree of October, 1901, and the sale were held to be binding upon the plaintiff, for possession of all the lands other than garden lands referred to in paragraph 3.

The defendant by his written statement pleaded that the mortgage extended to the whole zamindari, and that the sale certificate did so also, and that the whole property had been delivered to him thereunder. It was also pleaded that the plaintiff as a party, or representative of a party, to the suit of 1901 was not entitled in a separate suit to raise any question relating to the execution, discharge, or satisfaction of the decree, reference being made to s. 47 of the Code of Civil Procedure. With regard to the 226 kulis it was further pleaded that they formed part of the zamindari in 1893, there having been no legal transfer of the property itself to the late zamindars widow.

The Subordinate Judge by his judgment delivered on January 4, 1915, held that it was the intention that the whole zamindari should be charged by the mortgage of 1893, but that until the widow died in 1901 the zamindar had no interest in the 226 kulis of pannai land which he could alienate. It was, however, clear, in his opinion, that the defendant bought at the sale all the pannai lands including the 226 kulis, and that the plaintiffs remedy (if any) was only in the execution proceedings and under s. 47 of the Code of Civil Procedure, and not by a separate suit.

The hearing of an appeal to the High Court was delayed by an application not material to this report; judgment was delivered on March 7, 1917, varying the decree of the Subordinate Judge and giving the plaintiff a decree for 158 kulis out of the 226 kulis of pannai lands.

The judgment of the High Court was delivered by Srinivasa Ayyangar J., Abdur Rahim J. concurring. The learned judge, after expressing his agreement with the view of the Subordinate Judge that the mortgage did not include the 226 kulis, said as follows -"It would, therefore, follow that under the description contained in the decree which was presumably followed in the sale proclamation and the sale certificate, the first defendant could not have purchased and did not purchase the 226 kulis which were in the possession of Kamalu Ammal (the widow). It is, no doubt, true that on the date of the decree and on the date of the sale, Kadiriyasami (the mortgagor) and his heir, the present plaintiff, respectively were in possession of the 226 kulis, for Kamalu Ammal had died after the institution of the suit and before the decree. But the pannai lands in the possession of the mortgagee or his representatives referred to in the decree and in the sale proclamation obviously refer to the lands which were in the possession of the mortgagor on the date of t