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1999 Supreme(Mad) 912
High Court of Judicature at Madras
The Honourable Mr. Justice A. Raman
Balu
Versus
Dhanam and three others
S.A.No. 1828 of 1987
Decided On : 09-09-1999
M/s. Pushpa Sathyanarayanan, for Mr.T.R. Rajaraman, Advocate for Appellant. Mr.S. Parthasarathy, for Mr. M.S. Krishnan, Advocate for Respondents.
A subsequent purchaser of a mortgaged property has the right to file an execution petition under Section 146 CPC, and the principle of res judicata applies to prevent the respondents from re-agitating the same points that were decided in the order allowing the subsequent purchaser to be impleaded as a party to the final decree proceedings.
Headnote:
MORTGAGE - FINAL DECREE - SUBSEQUENT PURCHASER - RIGHT TO FILE EXECUTION PETITION - SECTION 146 CPC - APPLICABILITY - RES JUDICATA - PRINCIPLE - APPLICABILITY.
Fact of the Case:
A subsequent purchaser of a mortgaged property filed an application for passing of a final decree in a mortgage suit, impleading the original mortgagor, the mortgagee, and the assignee of the mortgagee as respondents. The respondents objected to the application, arguing that the subsequent purchaser was not a party to the original suit or to the final decree proceedings and that there could not be two final decrees in a mortgage suit. The trial court and the appellate court overruled the objections and allowed the application.
Finding of the Court:
The High Court held that the subsequent purchaser had the right to file an execution petition under Section 146 CPC, as he claimed under the original mortgagor, the decree holder. The court also held that the principle of res judicata applied, as the respondents had failed to challenge the order allowing the subsequent purchaser to be impleaded as a party to the final decree proceedings.
Issues: 1. Whether a subsequent purchaser of a mortgaged property has the right to file an execution petition under Section 146 CPC? 2. Whether the principle of res judicata applies to prevent the respondents from re-agitating the same points that were decided in the order allowing the subsequent purchaser to be impleaded as a party to the final decree proceedings?
Ratio Decidendi: 1. Section 146 CPC provides that where a proceeding may be taken or an application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. 2. The subsequent purchaser claimed under the original mortgagor, the decree holder, and therefore had the right to file an execution petition under Section 146 CPC. 3. The respondents had failed to challenge the order allowing the subsequent purchaser to be impleaded as a party to the final decree proceedings, and therefore the principle of res judicata applied to prevent them from re-agitating the same points.
Final Decision: The appeal was dismissed, and the order and decretal order passed by the courts below were confirmed.
1. The facts of this case lie in a narrow compass.
.2. The subject matter of the hypotheca belonged to Dhanam. She executed a mortgage in favour of Balu Chettiar, and borrowed certain amounts. Balu Chettiar assigned the mortgage in favour of one Kadappa Chettiar. The property was at that time, in the occupation of Sambandamurthi. In the meanwhile, the owner of the property Dhanam viz., the mortgagor filed as suit in O.S.No.-533 of 1975 for redemption of the mortgage, wherein a preliminary decree was passed on 111. 1976. She deposited a sum of Rs. 212.75 into Court pursuant to the preliminary decree. After passing of the preliminary decree, she sold the property in favour of one Ramaswamy, who is the 2nd respondent herein. But inspite of her having sold the property in favour of Ramaswamy, she pursued the matter by filing application in I.A.No. 99 of 1979 for passing of final decree pursuant to the preliminary decree obtained by her and a final decree was passed. At that time, Ramaswamy filed E.P.No. 430 of 1980 straight away. The right of Ramasamy, the subsequent purchaser to file the E.P. was questioned by stating that he was not a party to either the original suit or to the final decree proceedings and there is no decree in his favour. The E.P. was dismissed and CRP. No. 3641 of 1981 was filed against the same. While dismissing the CRP., it appears that the High Court had observed that it was open to the subsequent purchaser to proceed in accordance with law after getting himself impleaded in the final decree proceedings. Pursuant to the order of the High Court in the CRP., Ramaswamy the subsequent purchaser filed an application in IA.No. 981 of 1984 impleading Dhanam as well as Balu Chettiar and Sambandamurthi and Kadappa Chettiar as respondent. The said application was contested by the respondents. But, over-ruling the objections, the District Munsif ordered Ramaswamy to be impleaded in the final decree proceedings. It was after that, Ramaswamy filed an application in I.A.No. 594 of 1986 for passing of final decree, impleading Balu Chettiar, Sambandamurthi and Kadappa Chettiar as the respondents in the said application. To the said application, the very same objections were raised by the respondents, once again. But the District Munsif, again overruled those objections and allowed the application and passed a final decree. Aggrieved by the said decision, the respondents viz., Balu and Sambandamurthy preferred an appeal to the District Court in A.S.No. 92 of 1987. The District Judge, by his Order dated 28. 1987, confirmed the order of the District Munsif, dismiss the appeal, and consequently, this second appeal has been preferred.
.3. Learned counsel for the appellant contended that there cannot be two final decrees in a mortgage suit. I am not persuaded to accept this argument. Order 34 of the Code which relates to mortgage does not prohibit the passing of more than one final decree. Order 31, Rule 7 provides for passing of preliminary decree while Order 31, Rule 8 of the Code provides for passing of final decree in redemption. Admittedly, as on date, the defendants viz., the mortgagees have not complied with the provisions of the preliminary decree. The documents of title have not been handed over. Legal discharge of debt has not been effected. Therefore, on the date when the purchaser Ramaswamy filed an application for preliminary decree, inspite of passing of final decree already, the position was and that still the position that prevailed before passing of the final decree. It continued to prevail despite the passing of a final decree after that on the application of the plaintiff/mortgagor. Therefore, there is no prohibition for passing more than one final decree. The decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication has been completely disposed of. But here, though already a final decree has been passed, the
