Interest of the mortgagor and mortgagee passes subject to the rights of the puisne mortgagee.

1. This appeal is preferred against the judgment and decree of the Subordinate Judge, Namakkal in O.S.No.39 of 1987.

2. Thethird defendant is the appellant herein.

3. The plaint averments are summarised as follows: The first defendant obtained a loan of Rs.15,000 from the plaintiff on 1.2.1975 and executed a Mortgage Deed mortgaging the suit properties for the above loan. The first defendant obtained the above mortgage loan from the plaintiff for his money lending business and he is not entitled to claim benefits under the Debt Relief Act. The plaintiff demanded the repayment of the loan and inspite of it, the first defendant did not pay any amount. The first defendant had obtained another loan of Rs.30,000 from the second defendant on 19.10.1973 by mortgaging the very same properties for the above loan. The second defendant filed a suit in O.S.No.646 of 1979 against the first defendant and obtained a preliminary decree for a sum of Rs.50,000 on 31.3.81 and he also obtained final decree on 31.8.1983. Pursuant to that, the second defendant executed the above decree in E.P. No.63 of 1983 and brought the suit properties for sale. The third defendant purchased the first item for a sum of Rs.42,000 and the second item for a sum of Rs. 13,000 in court auction and the sale was confirmed. The second defendant in his suit in O.S.No.646 of 1979 did not implead the other mortgagees, namely, the plaintiff and the defendants 4 to 6 fraudulently and obtained the decree in their absence and the third defendant had purchased the properties for a lesser amount. Items 1 and 2 of the suit properties are individually worth a lakh of rupees. The court auction was not conducted as per law. Defendants 4 to 6 are impleaded in the suit since they are subsequent mortgagees of the suit properties. The plaintiff prayed for a mortgage decree for a sum of Rs.36,600 in the suit.

4. The third defendant in his written statement has contended that he is a bonafide purchaser in court auction sale in pursuant to the decree obtained by the second defendant against the first defendant. The sale has been confirmed and the delivery has already been taken through court. One Thiagarajan, son of Periasami Pillai and also the plaintiff filed applications to set aside the sale and they were dismissed. No further action was taken against that order and hence the plaintiff is barred by the principle of res Judicata from agitating the same question once again in this proceeding. The suit is not maintainable for the reason that the sale in favour of the third defendant has been confirmed and the possession has been taken. There is no liability for the third defendant to pay the suit claim. The third defendant is not a necessary party to the suit. There is no cause of action against the third defendant and the alleged one is false. The prayer in the plaint for a decree against all the defendants is not sustainable in law.

5. The trial Court framed five issues and on a consideration of the matter, held that the plaintiff is entitled for a mortgage preliminary decree against the defendants and decreed the suit as prayed for with costs. Aggrieved by the same, the third defendant has preferred the present appeal.

6. During the pendency of the appeal, the appellant died and his legal representative has been brought on record as appellant. In this Judgment, the parties are described as arrayed in the suit for the sake of convenience.

7. The point for determination in this appeal is whether the plaintiff is entitled for a mortgage preliminary decree as prayed for?

8. POINT:- The case of the plaintiff is that the first defendant obtained a loan of Rs.15,000 from her on 1.2.1975 and executed a Mortgage Deed mortgaging the suit properties for the above loan and he did not pay any amount. She has further averred that the first defendant had earlier obtained another loan of Rs.30,000 from the second defendant on 19.10.73 by mortgaging the suit properties and the second defen