Decided on April 30,1953



Satyanarayana Rao, J. - (1.) This case was referred to a Bench by Our learned brother Subba Rao J. in view of the decision of the Supreme Court in -- 'Rama-swami Iyengar v. Kailasa Thevar', (A), which was followed subsequently by the Full Bench in -- 'C. M. A. Nos. 399 and 642 of 1946 (Mad) (B)' to consider the effect of these two decisions on the earlier decisions of this Court.
(2.) The plaintiff is the appellant. On 29-9-1926 defendants 1 and 2 mortgaged under Ex. D-3 two items of property to defendant 9. The first item is R. S. No. 3/2, 2 acres 15 cents and the second item is a tiled house. We are concerned in this appeal only with the first item. On 8-8-1927 defendants 1 and 2 sold item 1 to defendant 3. On 5-7-1930 defendant 3 entered into an agreement with the plaintiff to mortgage the property to him. As there was default on the part of defendant 3, a suit O. S. No. 21 of 1931 was instituted by the plaintiff to enforce the agreement. The suit was decreed, and in pursuance of the decree a deed of mortgage was executed by defendant 3 in favour of the plaintiff on 8-4-1933. That was the second mortgage on the property. To enforce that mortgage the plaintiff filed O. S. No. 21 of 1935 against defendant 3, but without impleading the first mortgagee that is defendant 9 as a party. On 28-11-1941, there was a compromise decree in the suit. In pursuance of this decree item 1 of the present plaint schedule was brought to sale and was purchased by the plaintiff on 6-10-1943. Meanwhile defendant 4 obtained a simple money decree in O. S. No. 105 of 1931 against defendant 3 and brought to sale item 1, which was purchased by him in court auction. He obtained delivery of the property on 20-3-1932. He sold his interest in the property to defendant 5 who obtained delivery for him on 26-4-1934. Defendant 9 assigned his right under the first mortgage to defendant 10, Defendant 10 thereafter filed O. S. No. 300 of 1942 to enforce the mortgage against defendant 5 and the mortgagors. He claimed in the suit an amount which was due after scaling down the debt in accordance with the provisions of Madras Act 4 of 1938. To this suit, however, the plaintiff was not made a party. On 2-10-1942 there was a preliminary decree in the suit which was followed by a final decree on 10-3-1943. Ultimately in pursuance of the final decree defendant 10 purchased the Hem in court sale on 19-11-1943. The plaintiff, who had purchased this item in an earlier court sale instituted this suit out of which this second appeal arises, to declare that the debt due under the mortgage of 29-9-1926-was discharged or in the alternative to determine the balance of the amount due thereunder so that the plaintiff might redeem the mortgage. His main contention was that by reason of the fact that he was not impleaded in O. S. No. 300 of 1942 as a party, his right to redeem the first mortgage either as a puisne mortgagee or as a purchaser of the item in court sale was not affected and that he is entitled now to redeem the mortgage and is bound to pay only the scaled down amount, for which the decree was passed in O. S. No. 300 of 1942 and no more. This contention was negatived by both the Courts on the ground that the plaintiff and defendant 5 were not agriculturists and since the personal covenant was barred and the entire interest of the property was lost to the mortgagors, the mortgagors also could not claim the benefit.
(3.) In this second appeal by the plaintiff it was strenuously contended by Mr. Bhimasankaram, the learned advocate for the appellant that as the mortgagors are agriculturists, whatever may the position as regards defendant 5, and as the benefit of the scaling down was admitted by defendant 10 in the earlier mortgage, he is entitled to that benefit by reason of his "lucky purchase".;

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