A transferee from the mortgagor, who was not made a party to the suit for foreclosure, cannot be compelled to redeem the mortgage and can insist on remaining in possession unless the property is sold in a properly constituted suit in his presence.

R. C. PATNAIK, J.

( 1 ) THIS is a plaintiff's second appeal from an action for recovery of possession. The decree granted to him by the trial court has been reversed by the lower appellate court.

( 2 ) ONE Gobinda Panda had three sons, namely. Bhima. Madhaba alias Pada and Shyamsundar. After Gobinda's death, the three brothers separated and partitioned their property. Madhaba and Shyam sold their shares to Bhima who thus became the absolute owner of 1. 80 acres. For legal necessity, Bhima sold the entire 1. 80 acres to the plaintiff by registered sale deed dated 4-8-1905 and delivered possession of the property sold. The plaintiff sold 1. 15 acres to Balabhadra Kar and Krupasindhu Dash and retained Ac. 0. 65 with him which is the subject matter of the suit. It may be stated here that Bhima us the Karta of the joint family consisting of his brother, himself and members of the family had earlier executed a simple mortgage in favour of Biswanath, defendant No. 1. On 25-11-1968, defendant No. 1 filed mortgage Suit No. 440 of 1968 for foreclosure and sale. The plaintiff, who was a transferee from the mortgagor under the registered sale deed dated 4-8-1965, was not impleaded as a party. On 20-12-1968, the mortgage suit was disposed of on compromise, the terms whereof were that the amount due on the mortgage would be paid within two months failing which final decree for foreclosure would be passed. On 12-81969, the final decree was passed. Defendant No. 1-mortgagee-decree-holdor launched execution case No. 181 of 1969 and in course of the execution, the property was sold on 19-8-1970 and defendant No. 1 was the auction purchaser. On 7-11-1970, he obtained the sale certificate and thereafter obtained possession. When the plaintiff was dispossessed in execution of the decree, he filed an application under Order 21, Rule 100 of the Civil P. C. The same having been rejected, the present action for recovery of possession was brought under Order 21, Rule 103 of the Code on the ground that he, a transferee from the mortgagor, not being a party to the mortgage suit was not bound by the decree of foreclosure, the sale and delivery of possession in execution. Defendant No. 1 pleaded that the plaintiff was not, a necessary party but nevertheless was hound by the decree. It was, however, averred that the plaintiff despite his knowledge of the prior mortgage obtained the sale deed from Bhima. So, he was bound by any decree that was passed against the mortgagor. The trial Court decreed the suit holding that the plaintiff not being a party to the mortgage suit was entitled to recover possession. The lower appellate court reversed the decree holding that the plaintiff was not entitled to recovery of possession without seeking to redeem the mortgage by paying the mortgage dues.

( 3 ) MR. R. K. Mohapatra, the learned counsel for the plaintiff-appellant, submitted that the lower appellate court erred in law in refusing to follow the case of Ganga Prasad Singh v. Mt. Ganeshi Kuer, AIR 1944 Patna 119. He submitted that the plaintiff a transferee from the mortgagor who was not made a party to the suit for foreclosure could not be compelled to redeem. He could insist on remaining in possession and the remedy of the defendant No. 1 lay in instituting a properly constituted suit for foreclosure and sale. 3a. Mr. B. P. Ray, the learned counsel for respondent No. 1, contended that the plaintiff being a transferee from the mortgagor could not sue for recovery of possession alone without paying the mortgage dues.

( 4 ) IN Ganga prasad's case, the title of B to 2 1/2 kathas and of M to 2 1/2 kathas was declared. The share of M was purchased by one J. J in turn sold it to one R. On death of B, his share went to P. P sold 12 1/2 dhurs to R so that r became owner of 3 kathas and 2 1/4 dhurs and sold the same to the plaintiffs. The plaintiffs also obtained possession. Before title of B to 2 1/2 kathas was declared in the suit, M had executed a mortgage of the ent