Decided on April 02,1953



Rajamannar, C.J. - (1.) In my opinion, the courts below were right in holding that this case is covered by the principle enunciated in the Full Bench decision of this Court in -' Nagendran Chettiar v. Lakshmi Animal', AIR 1933 Mad 583 (PB) (A). The contest in this case is between two auction-purchasers in execution of two mortgage decrees. The respondent-plaintiff's claim is based on a purchase in execution of a decree obtained on a mortgage of the year 1921, whereas the appellantdefendant's claim is based on his purchase in execution of the decree which he himself obtained on a subsequent mortgage of 1922. To the suit on the first mortgage, the second mortgagee was not made a party. To the suit on the second mortgage which was brought by an assignee from the original mortgagee, the person representing the purchaser in the court auction in execution of tha first mortgage decree was 'eo nomine' a party as the fourth defendant. Actually, the District Munsif who tried the suit expressly declared that her rights will not in any way be affected or jeopardised by the decree he was passing. He evidently took the view that she was not a necessary party to the suit, and all that could be sold was the right, title and interest of the mortgagor as it existed on the date of the second mortgage, that is to say, subject to the rights under the first mortgage. The result was that though the representative of the purchaser in execution of the first mortgage decree was a party to the suit on the second mortgage, in effect, the suit proceeded as if he was not. The legal position which follows from these facts is that here are two purchasers in execution of two decrees on two mortgages, one prior and the other subsequent. In the suit on the first mortgage, the second mortgagee is not made a party and in the suit on the second mortgage, the first mortgagee is not made a party. The decision of the Full Bench referred to above deals with an exactly similar position, It was therein held that the first purchaser is entitled to retain possession. The plaintiff is in the position of such a purchaser and is therefore entitled to maintain his possession. He was therefore rightly granted a decree for a perpetual injunction restraining the defendant from obtaining delivery of possession on the basis of his purchase at the court sale in execution of the decree obtained by him on foot of the second mortgage.
(2.) Mr. Seshachari, learned counsel for the appellant, wanted to raise another point to understand which it is necessary to refer to other facts. But I find nothing in the judgment of the lower appellate court relating to this point as presumably this point was not urged before the learned Judge. This inference of mine is further strengthened by the fact that the Memorandum of second appeal is conspicuous in not containing a single ground raising this point. I have therefore not allowed learned counsel to raise the point before me.
(3.) Mr. Seshachari for the appellant com-plained that the declaration of the plaintiff's title may jeopardise whatever rights he may have In law, which could be worked out in a subsequent litigation. I do not wish to say anything as to this, because that is not a matter covered by the present case. If the appellant has rights which are not affected by the present litigation, then of course, such rights could remain unaffected.;

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