MAIN POINTS
Claim of purchaser of equity of redemption u/s 91 CPC can be no better than the mortgagor u/s 60.
Purchaser of equity of redemption claiming redemption of mortgage in 1999 after auction sale in 1994 and issue of sale certificate in 1997; neither challenging the sale or seeking modification of relief nor offering to repay the loan for redemption of mortgage nor even seeking to set aside the auction sale deemed to have waived his right of redemption.
Issue of sale certificate extinguishes the right of redemption of mortgage.

JUDGMENT

NAVIN SINHA, J.

The Appellants’ Suit O.S. No.96 of 1999, for redemption of mortgage was decreed by the Principal Junior Civil Judge, Guntur. The decree was reversed in AS No.65 of 2002, appeal preferred by the auction purchaser, Defendant No.2, by the VIII Additional District Judge (FTC), Guntur. The Second Appeal by the Appellants against the reversal of decree has been dismissed. The parties shall be referred to by their respective positions in the Suit.

2. Defendant Nos.3 and 4 created an equitable mortgage of their property at D.No.80 of Gorantala village, Guntur, measuring Ac 1-34 cents (2000 sq.yds.) for a loan of Rs.10,000/- in favour of the Bank, Defendant No.1, by deposit of title deeds on 15.03.1979. The Bank instituted O.S. No. 68 of 1987 for recovery of the loan by sale of the mortgaged property. The property was auction sold on 05.09.1993. Defendant No.2 being the highest bidder at Rs.50,000/-, sale certificate was issued and he was put in possession on 02.07.1997 in Execution Petition No. 203 of 1997.

3. The Plaintiffs were stated to have purchased the mortgaged property by different sale deeds dated 12.08.1985, 20.08.1985 and 30.09.1985. Asserting possession, they preferred O.S. No.165 of 1994, seeking permanent injunction restraining Defendant Nos. 2 to 4 only from interfering with their peaceful possession. The Suit and the Appeal A.S. No.67 of 1997, against the same were dismissed. Execution Appeal No.996 of 1997 preferred by the Plaintiffs in Execution Petition No. 203 of 1997 was also dismissed. The Plaintiffs thereafter preferred O.S. No.96 of 1999 for redemption of mortgage under Order XXXIV Rule 1 of the Code of Civil Procedure (hereinafter referred to as ‘the CPC’), now impleading the Bank as Defendant also. The Suit was decreed on 27.02.2002, but reversed in appeal by the auction purchaser, Defendant No.2 holding that consequent to the auction sale and issuance of sale certificate along with possession delivered, Defendant Nos.3 and 4 were no more the owners of the property, and there stood no debt to be redeemed on the date of filing of the Suit. The Plaintiffs were thus not purchasers of the equity of redemption, dismissing the Suit. The High Court in Second Appeal held that the right to redemption in the Plaintiffs, by stepping into the shoes of the Mortgagor under Section 59A of the Transfer of Property Act, 1882 (hereinafter referred to as ‘the Act’) stood extinguished in view of the final decree for foreclosure in O.S. No.68 of 1987 filed by the Bank, Defendant No.1, and the consequent sale certificate issued in favour of the auction purchaser, Defendant No.2.

4. Sri B. Adinarayana Rao, Learned Senior Counsel appearing for the Appellants, contended that a purchaser of a mortgaged property had the right to redeem the same either in whole or in part. The purchaser stepped into the shoes of his predecessors-in-title, and therefore, had the same rights which his predecessor had in title before the purchase. The Plaintiffs having purchased the property and come in possession of the same, before institution of the Suit for foreclosure by the Bank or sale of the mortgaged property, had necessarily to be impleaded as party defendants under Order XXXIV Rule 1, CPC in such Suit. In absence of the same, any decree passed in such a Suit was not binding on the Plaintiffs and does not affect their right to redemption. Once a mortgage is created, it remains a mortgage till such time that it is not redeemed. Under Section 91 of the Act, besides the mortgagor, any person who has interest in the property mortgaged or in the right to redeem the same can also sue for redemption. The Plaintiffs were, therefore, competent to maintain the Suit. Reliance was placed on Nagubai Ammal & Ors. vs. B. Shama Rao & Ors., AIR 1956 SC 593, Mangru Mahto vs. Shri Tahkur Taraknathji, (1967) 3 SCR 125 and Mhadagonda Ramgonda Patil & Ors. vs. Shripal Balwant Rainade & Ors., AIR 1988 SC 1200.

5. It was further submitted that notwith