Decided on January 11,1955



- (1.) The facts necessary for the disposal of this appeal may be briefly stated: The plaintiff, as assignee of the decree in O.S. No. 475 of 1095 of the District Munsiffs Court of Nagercoil, purchased in execution of the said decree the property described in the plaint schedule along with certain other items and obtained delivery of possession of the same. This decree was obtained on the basis of a hypothecation bond dated 28.3.1083 executed by Isakimuthu Chettiar, the original owner of the property. He had sold the property to Kaliam Pillai in the year 1083 under Ext. A and the latter sold it to one Thampiah in 1090 under Ext. VIII. Though the suit was filed only in the year 1095, Thampiah was not made a party to the same. His heirs sold the property to the 2nd defendant on 12.1.1104 under Ext. XIII and at the time when the plaintiff sought delivery of possession, the 1st defendant, a mortgagee from the 2nd defendant was in possession. He contended that he could not be dispossessed in execution of the decree which was not binding on his mortgagor or her predecessor in interest and the contention was upheld directing redelivery of the property to him. Alleging that the sale deed to Kaliam Pillai and Thampiah were sham documents which had not come into effect, the plaintiff instituted this suit for setting aside the order upholding the 1st defendants claim and for recovery of possession of the property from the 1st defendant, in the alternative, it was prayed that the 1st defendant should be compelled to redeem the plaintiff. The 1st defendant surrendered his mortgage right to the 2nd defendant during the pendency of the suit and the contest was between the plaintiff and the 3rd defendant who was one of the 2nd defendants heirs. She contended inter alia that the sale deeds to Kaliam Pillai and Thampiah were valid, that the plaintiff was not entitled to recover possession on the strength of the sale in execution of the decree to which Thampiah was not a party and that she was not liable to redeem the plaintiff. The Trial Court upheld the defence and dismissed the suit and the plaintiff has preferred this appeal from the decree.
(2.) The appellant did not press the prayer for recovery of possession on the ground urged in the plaint viz., that the sale to the 2nd defendant as well as to her predecessor-in-interest were sham and inoperative transactions. The only point urged in appeal was that even though Thampiah was not a party to O.S. No. 475 of 1095, the court sale in execution of the decree gave a fresh cause of action to the plaintiff to recover by sale the proportionate amount chargeable on the property, in case the defendants were not willing to redeem him. It was urged that this remedy was available to the plaintiff though a suit on the original cause of action was barred on the date of the plaint in the suit.
(3.) This case is in some respects different from that of a prior mortgagee suing without the puisne mortgagee on the party array and purchasing the property in execution of such a decree. In the latter case, the sale of the equity of redemption would be effective as the mortgagor could represent the equity of redemption subject to the prior and puisne mortgages and as purchaser of such equity of redemption the purchaser could redeem or ask to be redeemed. In such a case the puisne mortgagee who was left out in the earlier suit could not claim higher rights than would have been available to him if he had been made a party to the earlier suit. In a case like the present one, the equity of redemption is totally unrepresented in the earlier suit. In Pakavathi Neelakantan v. Ummini Pillai Lekshmi Pillai ( 1952 KLT 129 ) this court upheld the position that when a decree for realisation of the mortgage amount proves infructuous on account of the absence of necessary parties to the suit, a second suit for the same relief with the necessary parties on record was competent provided the same was brought within the period of limitation viz., 12 years from the date on which the bond became enforceable. Learned Counsel for the appellant relied on the decision of the Madras High Court in Sambasiva Ayyar v. Subramonia Pillai ( AIR 1936 Mad. 70 ) in support of his argument that the purchase in court sale furnished a fresh cause of action against the vendee of the property who was left out in the former suit. It was held in that case that auction purchaser had two capacities qua mortgagee and another qua purchaser of the items mortgaged to him, and that in his latter character he got a fresh cause of action from the date of his purchase or from the date of obstruction to his obtaining possession. This proposition has not been accepted by other High Courts in India and the Bombay High Court at least in one reported case viz., Ganapa Rama v. Timmaya Narayan (AIR 1942 Bom. 146) declined to follow this decision. As pointed out by Broomfield, J. in the case mentioned above, the decision in Sambasiva Ayyar v. Subramonia Pillai is to a considerable extent based on the ground of hardship which is not a safe ground. The earlier decisions of the Madras High Court such as Mulla Vittil Seethi v. Korambath Paruthooli Achuthan Nair and others (21 MLJ 213) Chandramma v. Gunna Seethan Naidu ( AIR 1931 Mad. 542 ) and Nagendran v. Lakshmi ( AIR 1933 Mad. 583 ) do not support the view taken in Sambasiva Ayyar v. Subramonia Pillai. The Allahabad High Court in Banwari Lal and another v. Nand Ram and others (ILR 49 All. 923) held that if a fresh suit on the original cause of action was barred, the plaintiff could not succeed in the second suit. The Calcutta High Court also accepted this view in Dhapubai v. Chandra Nath ( AIR 1938 Cal. 524 ), Guruprasad Sukul and another v. Tarinicharan Debnath and others ( AIR 1938 Cal. 634 ); Jagat Chandra De v. Abdul Rashid and others ( AIR 1935 Cal. 139 ) and Surendralal Kundu v. Ahmmad Ali ( AIR 1933 Cal. 912 ). This was the view that was followed by the High Court of Travancore also in Oonnittan Ouseph and another v. Narayanan Krishnan (7 T.L.T. 325). We do not feel justified in accepting the proposition laid down in Samabasiva Ayyar v. Subramonia Pillai.;

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