Private auction of mortgaged property.

Several interesting questions of law were argued by learned counsel for appellants at length. But, unfortunately, most of them do not arise for consideration in case on the facts of the case.

2. The facts are shortly these: The plaintiff who died pending the second appeal, executed -mortgage of the suit property in favour of the 1st defendant on 28.10.1963 for a sum Rs.25,000. The plaintiff executed a promissory note in favour of the 4th defendant who a suit thereon and in execution of the decree passed in that suit, purchased the equity redemption on 23.1.1969. Thereafter, the plaintiff executed a second mortgage in favour the second defendant on 20.5.1971 for a sum of Rs.10,000. The plaintiff executed the mortgage in favour of the third defendant on 20.12.1971 for a sum of Rs.5,000. The defendant who has been repeatedly demanding the amount due from the plaintiff first mortgage brought the property to sale in exercise of its power under Sec.69 of Transfer of Property Act and on 5.2.1972, the property was sold. The 5th defendant was highest bidder and she became the purchaser. But, on 18.2.1972, the plaintiff filed present suit O.S.No.1470 of 1972 on the file of City Civil Court, Madras for a declaration the sale dated 5.2.1972 was invalid and null and void and for an injunction restraining first defendant from executing a sale in favour of the third defendant. As per the plaint, third defendant was the purchaser in the auction sale. The 5th defendant was impleaded the plaintiff much later as the plaintiff found out that the purchaser was the 5th defendant.

3. As soon as the suit was filed, the plaintiff obtained an order of injunction from the court restraining the first defendant from executing a sale deed in favour of the purchaser. The suit was dismissed for default on 19.4.1975 and restored to file only later. Before suit was restored to file, the first defendant executed a sale deed on 15.7.1975 in favour the 5th defendant, the registration copy of which is marked as Ex.A-11. In fact, the defendant was impleaded as a party to the suit only on 2.4.1976 after the restoration thereof.

4. The only ground of attack against the private sale made in the plaint was that there no proper publicity to the auction and there was fraud and irregularity in the conduct of auction. In the plaint, it was averred that the third defendant was requested by the to help her to cleat her debts and she executed in his favour a general power of attorney respect of the management of the suit property. But the averment proved to be false power of attorney marked as Ex.A-2 shows that the third defendant was empowered to manage only the business of the plaintiff and he had nothing to do with the suit property as such. It was also averred in the plaint that the plaintiff executed the third mortgage in favour of the third defendant for expenses to be incurred him for the purpose of clearing her debts. According to the plaintiff, the third defendant a cheque for Rs.1,000 from out of the consideration for the mortgage to the first defendant, in order to prevent the first defendant from bringing the property to sale. It was alleged the third defendant wanted the plaintiff to sell the property for Rs.45,000 and as she refused to do so, he turned against her and stopped payment of the cheque. It was further that the third defendant himself purchased the property at the auction held on 5.2.1972 scaring away the bidders and having a few of his own men to bid, to make it appear regular auction. The plaintiff stated in the plaint that she had an offer from a Mrs.K.R.Muthayi Ammal to purchase the property for Rs.50,000 free of encumbrances that an affidavit sworn to by the said person was filed as an enclosure. I do not find reference whatever to the said affidavit in the list of documents set out in the plaint; does the index of the papers sent by the courts below make any reference to such affidavit. No reference was made to the affidavit in the ev