The purchaser in a private sale under Section 69 of the Transfer of Property Act, 1882, is a necessary and proper party to a suit for redemption of the mortgage.

ORDER :- The petitioners filed the suit O. S. No. 1939 of 1957 on the file of the City Civil Court, Madras, for redemption of a mortgage dated 21-5-1952 executed by them in favour of the second defendant in the suit. The petitioners contention was that the mortgage debt was fully discharged and that the mortgage should therefore be declare to be redeemed. Pending the suit, the petitioners prayed for a temporary injunction to restrain the mortgagee from bringing the property to sale under S. 69 of the transfer of Property Act. It must be mentioned that under that provision of law the mortgagee has a right to exercise what is called a private right of sale. This application for injunction was ultimately dismissed by order of court dated 18-12-1958. The mortgagee had therefore a tree hand in exercising the right of sale under S. 69 of the Tarnsfer of Property Act and he purported to exercise that right.

It is now claimed that one Srimathi Madamkavar Galada has become the purchaser of the property in the auction sale held on 20th March 1958, which resulted in the mortgagees exercise of the right of private sale. The petitioners thereupon filed the present application out of which this civil revision petition arises to implead the fifth respondent as a party defendant to the suit. This application was made on 10th January 1959. It was dismissed by order dated 30th January 1950 and hence this petition by the aggrieved plaintiffs -petitioners.

2. The learned City Civil Judge following the decision in Ramakrishna Mudali v. Official Assignee, Madras, ILR 45 Mad 774 : (AIR 1922 Mad 390 (2)) held that the purchaser has acquired a good title to the hypotheca under the private sale and that the purchase has brought about an extinction of the right of redemption. It is true that this Court has held that there is no bar of lis pendens where the hypotheca is sold away in exercise of a private right of sale by the mortgagee. I am not concerned at this stage as to what would be the result of the purchaser being impleaded as a party. The only question that is now relevant is whether the fifth respondent is a necessary or proper party to be impleaded in the suit for redemption.

3. The right of sale of the hypotheca, without the intervention of the process of Court, which a mortgagee has under S. 69 of the Transfer of Property Act, is a statutory right. It is as much and as full a right as the right of redemption of the mortgagor. The mortgagee is in no sense a trustee for the mortgagor in holding the power of sale, as he holds it for protection of his interests and for his benefit. Indeed, the swing of the law is so much in favour of the mortgagee, that he is not deterred from exercising his power of sale, even if the mortgagor files a suit for redemption. So long as the mortgage money is not paid or validly tendered, the mortgagee with full knowledge of a pending suit for redemption and perhaps to defeat the suit, can enforce his power of sale under S. 69. 4. In Baba Miya v. Jehangir Dinshaw, AIR 1941 Bom 339 Wadia J. observes,

"The mortgagee cannot be restrained from exercising his power of sale merely by reason of the mortgagor tiling a suit for redemption, unless he pays the mortgage amount to the mortgagee or tenders the same. There is however nothing to prevent a mortgagor from seeding to restrain the exercise of the mortgagees power of sale if the power is exercised in a wrong and improper manner contrary to the terms of the contract." It is not difficult to understand the philosophy of some solicitousness for the mortgagee who has advanced monies and who finds himself in a sad plight due to the dilatory conduct of the mortgagor. But this is really one side or the picture only. Instances where the mortgagee grabs at the hypotheca and squeezes the property out of the mortgagor are not rare. I must observe that sometimes the power of sale is used by the mortgagee ruthlessly as an instrument of oppression, as he is entrenched in the posi