The fourth defendant's exercise of sale power under Section 69 of the Transfer of Property Act was valid, allowing the plaintiff to recover possession and mesne profits from the defendants due to their wrongful possession.

JUDGMENT :

K. Rajasekar, J.

This original side appeal is filed challenging the judgment and decree passed in C.S.No.122 of 2007, dated 12.02.2007, wherein the learned Single Judge has ordered delivery of possession and payment of mesne profits.

2. The case of the plaintiff is as follows:

2.1 The suit properties belongs to the first defendant as per the sale deed dated 16.10.1970. The defendants 2 and 3 are sons of the first defendant, who jointly borrowed loan from the defendant 4 and as a security for the loan repayment, the suit property was mortgaged by the defendants 1 to 3 and executed two registered mortgaged deeds dated 02.07.1996 and 17.06.1997. Since the defendants 1 to 3 failed to redeem the mortgage loan, the 4^th defendant by exercising the powers under Section 69 of Transfer of Properties Act, sold the property in favour of the plaintiff by public auction, taken place by engaging M/s. Alwin and Co as per auction sale dated 02.12.2006, in which the plaintiffs have paid Rs.1,53,00,000/- as sale consideration.

2.2 After completion of the sale, the plaintiff informed the same to the defendants 1 to 3. In the mean time, defendants 1 to 3 have also filed suit for permanent injunction in O.S. No.1040 of 2005 before the IV Additional City Civil Court, Chennai, seeking injunction against the plaintiff, subsequently, the same was dismissed as infructuous. Since defendants 1 to 3 continued their possession and have not come forward to hand over the properties, the plaintiff has come forward to file a suit for delivery of possession and also for payment of Rs.30,000/- per month as rent for illegal action of staying and possession of suit property by the defendants 1 to 3.

3. The first defendant filed a written statement and admitted borrowal of loan from the fourth defendant by deposit of title deeds. The first defendant was regularly repaying the monthly installments, but that was not properly accounted by the fourth defendant. The auction sale was conducted without proper procedure or giving proper opportunity to the first defendant. The sale consideration also not properly fixed, the fourth defendant and the plaintiff were aware about the pendency of the suit before the City Civil court and with a view to snatch the properties, the sale deed has been executed in favour of the plaintiff by illegal means by the fourth defendant. The auction has not been properly conducted, thereby the sale is not valid and prays to dismiss the suit.

4. Based on the pleadings, the following issues were framed by the learned Single Judge.

"1. Whether the plaintiff is entitled for the recovery of possession of the suit property from the defendants 1 to 3?

2. Whether the sale deed executed by the 4th defendant in favour of the plaintiff pursuant to the auction conducted by its agent M/s.Alwin & Company is in any manner affected by the alleged suit in O.S.No.1440 of 2000 on the file of the IV Assistant Civil Court, which is no longer pending?

3. Whether the plaintiff is entitled to the relief of mesne profits calculated at Rs.30,000 p.m. in view of the unlawful enjoyment of the suit property by the defendants 1 to 3?

4. Whether the plaintiff is entitled for the costs of this suit?

5. To what reliefs is the plaintiff entitled to?"

5. On the side of the plaintiff, P.W.1 was examined and Exs.P.1 to P.7 were marked. On the side of the defendants, first defendant filed proof affidavit and no oral and documentary evidence was produced. The learned Single Judge after considering the evidence placed on record and after hearing arguments of both