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IN THE HIGH COURT OF MARAS
Samandan Karkat Edathil
Versus
Malikandi Aketh Mayan
Decided On : 29 January, 1914
Sale Nullity - Mortgagee's Interest - The court discussed the sale of properties mortgaged against the mortgagor and the puisne mortgagee, focusing on the omission to bring the representatives on record and its impact on the sale's validity. The court considered previous decisions and their applicability, ultimately ruling that the sale would be set aside upon the appellant being placed on record as the representative of the Karnavan and on payment of the amount due to the decree holder.
Fact of the Case:
The plaintiff obtained a decree on a hypothecation deed for the sale of mortgaged properties against the mortgagor and the appellants predecessor-in-title, a puisne mortgagee. The plaintiff got the properties sold in execution of his decree without bringing the representatives of the mortgagee-judgment-debtor on record. The appellant applied to be made a party and to set aside the sale, alleging fraud.
Finding of the Court:
The court held that the application to set aside the sale was not barred by limitation, as the omission to bring the representatives on record rendered the sale a nullity against the representatives of the judgment-debtor. The appellant was to be placed on record as the representative of his Karnavan, and on payment of the amount due to the decree holder, the sale would be set aside. The appellant was also entitled to costs.
Issues: The main issue was whether the sale could be set aside due to the omission to bring the representatives of the mortgagee-judgment-debtor on record, and whether the application was barred by limitation.
Ratio Decidendi: The court relied on previous decisions to determine that the omission to bring the representatives on record rendered the sale a nullity against the representatives of the judgment-debtor, and that the application was not barred by limitation. The appellant was to be placed on record as the representative of his Karnavan, and on payment of the amount due to the decree holder, the sale would be set aside.
Final Decision: The appellant was to be placed on record as the representative of his Karnavan, and on payment of the amount due to the decree holder, the sale would be set aside. The appellant was also entitled to costs in this and the Lower Appellate Court.
1. The plaintiff in O.S. No. 590 of 1903 obtained a decree on his hypothecation deed for the sale of the properties mortgaged against the mortgagor and the appellants predecessor-in-title who was a puisne mortgagee. The puisne mortgagee purchased the mortgagors interest in a Judicial sale in execution of a decree obtained by him to which the plaintiff was a party. The mortgagee-judgment-debtor in O.S. No. 590 of 1903 died and without bringing his representatives on record the plaintiff got the properties sold in execution of his decree. The appellant now applies in effect to be made a party and to set aside the sale on payment to the plaintiff of the amount due to him under the decree. He also alleged fraud. The Lower Courts hold that the application is barred by limitation. If the sale is a nullity so far as he is concerned, then the application is clearly not barred. According to the decisions of this Court, Ramasami v. Bagirathi (1883) I.L.R. 6 M. 180 Krishnayya v. Unnissa Begam (1891) I.L.R. 15 M. 399 and Groves v. Administrator-General (1891) I.L.R. 22 Mad. 119 the omission to bring the representatives on record is not a mere irregularity. It renders the sale a nullity against the representatives of the judgment-debtor. But it is contended that these decisions have been overruled by the Privy Council, See Malkarjun v. Narhari (1900) I.L.R. 25 B. 337. In that case however there was an order passed by the Court executing the decree directing a person to be brought on record as the representative of the deceased judgment debtor. The fact that the decision was afterwards found to be erroneous and the true representatives were not brought on record was held not to be sufficient to set aside the sale against a bona fide purchaser. See Khiarajmal v. Daim (1904) I.L.R. 32 C. 296 at 315 (P.C.). In this case it may also be pointed out that the decree holder was the purchaser and he had notice of the death of his judgment debtor. We are therefore unable to hold that the Madras Cases are no longer of any authority.
2. The appellant therefore will be placed on record as the representative of his Karnavan and on payment of the amount due to the decree holder, the sale will be set aside. The appellant is entitled to the costs in this and the Lower Appellate Court. The Costs in the first Court will be provided for in the final order.
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