GANAPA RAMA HEGDE Vs. TIMMAYA NARAYAN HEGDE

JUDGEMENT

(1.) THE facts are stated in the judgments of the lower Courts. THE question for decision in this second appeal reduced to its essentials may be stated in this way. A mortgages property to B and afterwards sells to C who takes possession. B then sues on his mortgage not making C a party, brings the property to sale and purchases it himself. Failing to get possession from C, he sues to evict him subject to C's right to redeem, him. At the time of B's suit against C a suit to recover the mortgage debt by sale of the property would be time-barred. Is B entitled to recover the property from C unless C is willing to redeem?

(2.) THE case is covered by the authority of Dattatraya v. Venkatesh (1922) 24 Bom. L.R. 741, where it was held on facts essentially similar that the auction purchaser in the mortgagee's suit has no such right. Both the lower Courts have followed this case, as they were bound to do, and the argument before us has mainly consisted of a challenge to the authority of that case.

(3.) ON the other hand, in some of the cases it is clear that the auction purchaser was held to be entitled to recover possession of the property because he represented the mortgagee. For instance in Desai Lallubhai Jethabhai v. Mun-das Kuberdas, Mr. Justice Ranade said (p. 392) : The authorities...are quite clear on the points (1) that the purchaser stands in the place of the prior mortgagee, and (2) that he has a right to recover possession, (3) that the subsequent mortgagee cannot compel him to redeem his own mortgage, but (4) has a right himself, in case he has not been made a party to the suit on the prior mortgage, to pay off the prior incumbrance if he desires to retain possession.