Execution sale and purchase of equity of redemption contravenes order 34.

While dismissing second appeal No. 1016 of 1945 Raghava Rao, J., granted leave for a further appeal as against the 8th respondent therein and refused leave as against the 5th respondent. Under those circumstances the appellant has preferred the above Letters Patent Appeal against the 8th respondent in the second appeal who was the 13th defendant in O.S. No. 23 of 1942 on the file of the Additional Subordinate Judge’s Court of Madurai out of which these proceedings have arisen.

The plaintiff-appellant is the eldest son of the first defendant whose other sons are defendants 2 to 4 and they are members of a joint Hindu family. The suit was one for partition and separate possession of the plaintiff’s share in the joint family properties. The 13th defendant, who is the contesting respondent both in the second appeal and in this Letters Patent Appeal, was impleaded as an alienee of certain joint family properties and the plaintiff claimed his share in those properties as well. The 13th defendant’s contention, which alone need be noted at this stage, is that under a valid decree and execution-sale against the first defendant representing the joint family, she has purchased those properties in court auction and that the properties were no longer liable to be partitioned. Both the lower Courts, as well as Raghava Rao, J., have upheld her contentions though for different reasons. How the 13th defendant came to acquire the right in the properties may be shortly stated.

On 12th November, 1934, the first defendant executed Exhibit D-34 a mortgage for a sum of Rs. 5,000. On the same date under Exhibit P-2, the self-same properties were leased back by the mortgagee to the first defendant for a period of three years on a rental of Rs. 400 per year. The mortgage and the lease deed were to be co-terminus, i.e., the mortgage was to enure for a period of three years before redemption and the lease was to be for a period of three years from the date when the mortgagee-lessor granted to the mortgagor-lessee the lease under Exhibit P-2. There was a stipulation that the rent of Rs. 400 will be paid yearly. As the first defendant did not pay one instalment, the 13th defendant filed O.S. No. 302 of 1936 on the file of the District Munsif’s Court of Tirumangalam and got a simple money decree for the amount, Exhibit D-41, dated 24th February, 1937. In execution of that decree the equity of redemption of the mortgagor was put up for sale which was confirmed on 29th August, 1938, and the 13th defendant recovered possession in execution of the sale-certificate, on 3rd August, 1940. On 27th September, 1940, the plaintiff became a major and the suit for partition was filed in the District Munsif’s Court of Tirumangalam, on 5th March, 1941. It was returned for presentation to the proper Court, as the pecuniary value exceeded the jurisdiction of the District Munsif’s Court, on 23rd December, 1941, being the last date on which the District Munsif’s Court losed for the Christmas holidays. The plaint was re-presented in the Subordinate Judge’s Court of Mathurai on 2nd January, 1942, the reopening date after the Christmas holidays.

The basis of the plaintiff’s claim for disputing the 13th defendant’s right to the properties is that the court sale, and the purchase by the 13th defendant, contravened Order 35, rule 14 of the Code of Civil Procedure in that the decree for arrears of rent obtained in O.S. No. 302 of 1936 was a decree for payment of money in satisfaction of a claim arising under the mortgage, and therefore the 13th defendant was not entitled to bring the mortgaged property to sale in execution of a claim arising under the mortgage, she not having had recourse to instituting a suit for sale in enforcement of the mortgage. On that plea, the question arose as to whether the mortgage Exhibit D-34 and the lease Exhibit P-2 were parts of one and the same transaction in order that the rent under the lease deed would be the interest on the mortga