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IN THE HIGH COURT OF MADRAS
Govindarajulu Naidu
Versus
Chinnathambi Padayachi And Ors.
Decided On : 18 November, 1927
Paramount Title - Mortgage Suit - The court allowed the appeal, stating that the claim of the respondents under Rule 100, Order 21, Civil P.C. should have been tried under Section 47, Civil P.C. and the plaintiff is entitled to an inquiry into the title under Section 47, Civil P.C.
Fact of the Case:
The question of paramount title was excluded from consideration in the mortgage suit, but defendants 2 to 4 were not struck off as the plaintiff impleaded them on the ground that they were lessees of the mortgagor.
Finding of the Court:
The court allowed the appeal, stating that the claim of the respondents under Rule 100, Order 21, Civil P.C. should have been tried under Section 47, Civil P.C. and the plaintiff is entitled to an inquiry into the title under Section 47, Civil P.C. The respondents were ordered to pay the appellants' costs.
Issues: Exclusion of paramount title from consideration, impleading of defendants 2 to 4, trial under Section 47, Civil P.C.
Ratio Decidendi: The claim of the respondents under Rule 100, Order 21, Civil P.C. should have been tried under Section 47, Civil P.C. and the plaintiff is entitled to an inquiry into the title under Section 47, Civil P.C.
Final Decision: The appeal was allowed, and the respondents were ordered to pay the appellants' costs in this and the lower appellate Court.
1. Though the question of paramount title was excluded from consideration in the mortgage suit, defendants 2 to 4 could not be struck off. The plaintiff impleaded them on the ground that they were lessees of the mortgagor. It does not appear that this allegation of the plaintiff was ever abandoned. There-fore, defendants 2 to 4 had to continue and did continue as parties to the suit. V. Sannamma v. K. Radhabhayi [1918] 41 Mad. 418 nor Krishnappa Mudaly v. Periyaswamy Mudaly [1917] 40 Mad. 964 is on all fours with the facts of this case. We think the claim of the respondents under Rule 100, Order 21, Civil P.C. ought to have been tried under Section 47,. Civil P.C. and the plaintiff who wants an enquiry into the title under Section 47, Civil P.C., is entitled to it. We allow the appeal. The respondents will pay the appellants costs in this and the lower appellate Court. The costs in the first Court will abide the result.
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