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1999 Supreme(Mad) 40
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE E. PADMANABHAN
S. Kannan and another
Versus
G. Saraswathi Ammal
S.A. No.610 of 1987
Decided On : 13-01-1999
T.M. Hariharn, Advocate for Appellants. Mr. R. Kannan, Advocate for Respondents.
A sale of property that is subject to attachment before judgment is void.
Headnote:
ATTACHMENT BEFORE JUDGMENT - EQUITY OF REDEMPTION - VALIDITY OF SALE - SUBROGATION - VOID SALE - REIMBURSEMENT - SECTION 64 CPC - SALE OF PROPERTY SUBJECT TO MORTGAGE - RIGHTS OF PURCHASER - INTERPRETATION OF COURT.
Fact of the Case:
The plaintiff filed a suit for declaration of title and permanent injunction or recovery of possession of a property. The defendants purchased the property in a court auction after the plaintiff's vendor had purchased the equity of redemption subject to a subsisting mortgage. The plaintiff claimed that the sale to the defendants was void as the equity of redemption had already been attached before judgment. The defendants argued that they were entitled to subrogation as they had discharged the mortgage.
Finding of the Court:
The court held that the sale of the equity of redemption to the defendants was void as it had already been attached before judgment. The court also held that the defendants were entitled to subrogation and could claim reimbursement of the money paid by them to discharge the mortgage.
Issues: 1. Whether the order of attachment before judgment made in the money suit without notice to the third defendant-judgment debtor is valid and of legal effect? 2. Whether the purchase of the suit site by the decree holder in the name of his son the 4th defendant without the sanction of the Court was legal and the Court auction sale is valid in law? 3. Whether the first defendant would be subrogated to the rights of the mortgagee or his payment to mortgage decree-holder would be of a volunteer?
Ratio Decidendi: The court relied on Section 64 of the Code of Civil Procedure, which states that a private sale of property that is subject to attachment is void. The court also relied on the principle of subrogation, which allows a person who has paid off a debt to step into the shoes of the creditor and claim reimbursement from the debtor.
Final Decision: The court allowed the plaintiff's appeal in part and modified the judgment of the first appellate court. The court declared the plaintiff's title to the suit property and granted the plaintiff possession of the property subject to the plaintiff paying the defendants the sum of Rs. 10,095 with 9% interest from the date of the suit.
1. The defendants 1 and 2 in O.S.No.98 of 1983 on the file of the Sub-Court, Madurai, who have succeeded before the trial court and lost before the first appellate court are the appellants in this second appeal. This second appeal is directed against the judgment and decree dated 30.12.1996 made in A.S.No.54 of 1986 on the file of the District Court, Madurai.
2. At the time of admission the following substantial questions of law were framed by this Court:-
.(a) Whether the order of attachment before judgment made in the money suit without notice to the third defendant-judgment debtor is valid and of legal effect?
.(b) Whether the purchase of the suit site by the decree holder in the name of his son the 4th defendant without the sanction of the Court was legal and the Court auction sale is valid in law?
.(c) Whether the first defendant would be subrogated to the rights of the mortgagee or his payment to mortgage decree-holder would be of a volunteer?
3. Heard Mr. T.M. Hariharan, the learned counsel appearing for the appellants and Mr.R. Kannan, learned counsel for the respondents. For convenience, the parties to this appeal will be referred as arrayed before the trial court.
4. The plaintiffs instituted the suit O.S.No.98 of 1983 on the file of the Sub-Court, Madurai for declaration of her title and for permanent injunction or in the alternative for recovery of possession. The trial court after elaborate consideration dismissed the suit and uphled the defendants title, as the defendants who are the auction purchasers have discharged the earlier subsisting mortgage debt. On appeal by the plaintiff the first appellate court set aside the judgment and decree of the learned trial Judge, allowed the appeal and decreed the suit declaring the plaintiffs title. Being aggrieved, the defendants 1 and 2 have preferred the present second appeal.
5. With respect to the factual matrix, there is not much of controversy and the chronology of events alone need be referred to. V.S. Ramalingam, the third defendant in the suit under Ex.B.4 purchased the suit property on 18. 1973 from one Deivanai Achi, who had in turn purchased the very same property under Ex.B.3 dated 27. 1964 from one Somasundaram Pillai. The title of the third defendant is admitted by either side.
.6. The third defendant had borrowed a sum of Rs. 2, 000 from one Appasamy Pillai on 15. 1975. The third defendant had borrowed a sum of Rs.6, 000 from one Thulasiram Visalakshi on 26. 1975 to secure repayment of the principal amount of Rs.6, 000 and interest and the third defendant deposited the title deeds with the said Thulasiram Visalakshi on 30.6.1975. Thus the third defendant had deposited Exs.B.3 and B.4 the documents of title with the said Thulasiram Visalakshi and created an equitable mortgage. The above facts are not in dispute.
7. Appasamy Pillai who had advanced a sum of Rs.2, 000 on 15. 1975 instituted the suit O.S.No.40 of 1978 against the third defendant for recovery of the money due to him. Thulasiram Visalakshi, the mortgagee also instituted a suit O.S.No.222 of 1978 on the file of the Sub-Court, Madurai at or about the same time for recovery of the amount due on the equitable mortgage. The suit O.S.No.222 of 1978 has been instituted on 30th of March 1978 while the suit O.S.No.400 of 1978 on the file of the District Munsif court, Madurai by Appasamy Pillai had been instituted on 20th March, 1978.
8. The said Appasamy Pillai applied for attachment of the suit property before judgment and by order dated 14. 1978 made in I.A.No.355 of 1978, the District Munsif Court, Madurai Town ordered interim attachment before judgment at the instance of the said Appasamy Pillai. In O.S.No.222 of 1978 on the file of the Sub-Court, instituted by the equitable mortgagee a preliminary decree was passed on 8. 1978 as seen from Ex.A.19. Thereafter on 31. 1979 as seen from Ex.A.3, the interim attachment made in I.A. No.355 of 1978 in O.S.No.400 of 1978 on the fi
