Back
1921 Supreme(Mad) 4
IN THE HIGH COURT OF MARAS
S Aiyar
Appia K.R. Rukmani Ammal And Appia
Versus
Kuttuvava Narasimma Iyer And Anr.
Decided On : 6 January, 1921
The main legal point established in the judgment is the interpretation of procedural rules, including the appealability of orders, the entitlement to possession based on mortgagee rights, and the modification of decrees in execution applications.
Headnote:
Mortgagee Rights - Property Dispute - O.S. No. 343 of 1909, Order 21 Rule 100, Section 47 - Summary of Acts and Sections: O.S. No. 343 of 1909, Order 21 Rule 100, Section 47 - The court discussed the applicability of Order 21 Rule 100 and Section 47 of the Civil Procedure Code in the context of mortgagee rights and property dispute. The judgment clarified the procedure for appeals and the interpretation of decrees in execution applications.
Fact of the Case:
The appellants, as mortgagees, sought restoration of possession of properties based on their vendor's court purchase in 1909. The respondents, subsequent mortgagees, obtained possession in 1917. The dispute arose from conflicting decrees and claims of priority.
Finding of the Court:
The District Munsiff initially granted possession to the appellants, but the Lower Appellate Court re-restored possession to the respondents. The court analyzed the nature of the applications, the right to possession, and the modification of the lower appellate court's decree.
Issues: The issues included the appealability of the District Judge's order, the entitlement to possession based on purchase rights, and the conditions for granting possession to the respondents.
Ratio Decidendi: The court held that an appeal lay to the District Court from the order of the District Munsiff, clarified the entitlement to possession based on mortgagee rights, and modified the lower appellate court's decree to include conditions for possession.
Final Decision: The appeals were dismissed, and the court directed the modification of the lower appellate court's decree regarding the payment of the amount due under the petitioner's first decree.
Sadasiva Aiyar, J.
1. This is an appeal against the order of the District Judge of Madura who in reversal of the order of the Principal District Munsiff of Madura directed possession of certain properties to the respondents.
2. The facts are a little complicated and the material ones have to be stated to understand the questions in dispute. In stating them I shall sometimes identify the parties with their predecessors in title in order to avoid unnecessary and confusing details. The appellants in C.M.S.A. 25 and 26 were the petitioners in the Munsiffs Court. As mortgagee, their vendor (predecessor in title) obtained the first decree for sale of the plaint properties in a suit brought against the mortgagor and against the respondents (2nd mortgagees). Either by carelessness or deliberately in order to obtain a speedy decree for sale, he agreed to a decree for sale subject to the subsequent mortgage right of the respondents. This decree was passed in July 1907.
3. The respondents then brought O.S., No. 343 of 1909/against the common mortgagors and against the vendor of petitioners (as if he was a subsequent mortgagee a position which/he consented to occupy in the proceedings in the prior suit). After this suit of 1909 was brought, the petitioners vendor brought the mortgaged properties to sale in execution of his first decree and purchased them himself on 8-11-1909. Then he) filed a written statement in the respondents suit claiming, priority over respondents mortgage. While that suit was pending he got delivery of the properties which lie purchased in his first suit hi March" 1910.
4. The respondents second suit was decreed on 23-8-1910 and that decree directed the plaint property to be sold "subject to the priority " of the petitioners vendor " to the extent of the amount declared due " to her in her prior decree of 1907. In accordance with this preliminary decree of August 191.0 a final decree was passed in I9I.6, the properties were again sold in the second suit of the respondents and they were purchased by the respondents in October 1917.
5. I have already said that the petitioners vendor as purchaser in his first suit obtained delivery through court in March 19.10 ejecting the common mortgagors. The respondents as purchasers in 1917 in their second suit applied, for delivery and got delivery on 5-2-1919 dispossessing the petitioners. It was under these circumstances that toe petitioners filed their applications in the Munsifs Court out of which the second appeals have arisen. The applications were filed under O. 21, R. 100 for restoration of possession (as I stated in the beginning 1 have identified the vendor of the petitioners whose names are Appiah K.R. Rukmani Animal, A. Ramachari and A. Rajaram with his predecessor in title including Venkatachala Aiyar who was the first mortgagee of 1894, his title being traced through several transfers by alienations, inheritance etc. So also with the Respondents.)
6. The District Munsiff granted the petitioners applications and restored them to possession on the ground that their vendors court purchase in November 1909 was prior to respondents court purchase of 1917 and that the respondents decree of August 1.910 directed sale of the property subject to the petitioners vendors claim of priority. On appeal by the respondents, the Lower Appellate Court re-restored possession to the respondents. Though the judgment of the lower appellate court contains several paragraphs, the reason for the decision ma} be said to be given only in one short sentence as follows: - "The subsequent mortgagees the present appellants (that is the, appellants before the District Court who are the respondents in this Court and were the respondents in the Munsifs Court)" had a right to redeem the first mortgagee and they have therefore a right to possession,, in pursuance of their purchase in execution." The contentions formulated in the 15 grounds of the Memorandum of Appeal to this Court may be boiled dow
