S N RAGUNATHASWAMY IYENGAR Vs. SGOPAU RAO

JUDGEMENT

(1.) I agree with the judgment about to be delivered and have nothing to add, to it. Ramesam, J.

(2.) The suit out of which this appeal arises was brought on foot of a mortgage-deed dated 3- 11-1896 for the recovery of the mortgage amount, by an assignee, from the heir of the mortgagee, Ayyasami Pillai. The main defence is that the mortgage was extinguished by reason of the decree in O.S. No. 11 of 1898 and the proceedings in its execution. That suit was based on a prior mortgage dated 17-3-1896 "and Ayyasami was the 8 defendant therein. In his written statement (Ex. V c) he stated that he had no objection to the passing of a decree and prayed that the balance, after selling the property and paying off the amount due to the plaintiff might be paid towards his mortgage. The other defendants, in that case originally contested the suit but afterwards filed a. compromise petition (Ex. C) by which the amount to be decreed was determined and a compromise decree (Ex D) was passed. The learned vakil for the respondent argued that Ayyasami was not a party to that decree. I cannot agree to this contention. His name appears in the cause title of the decree and the court was not even asked to strike his name out of the record. The suit cannot be regarded as still pending so far as he is concerned nor can it be said that it was dismissed as against him. It follows therefore that the decree directing the sale of the properties without reserving his right (i.e.) free of his mortgage Vide Sri Gopal V/s. Pirthi Singh (1902) I.L.R. 24 All. 429 (P.C.) is a decree affecting him and is binding on him. If duly executed, it ought to extinguish his mortgage.

(3.) The property was sold on 9 July 1904 (Ex. VII); some time before the sale, (i.e.) on 6- 4-1904., Ayyaswami died and his legal representatives were not brought on record. In these circumstances, the Subordinate Judge held that the sale could not effect his, interests. It is contended for the appellants that Ayyasami was a pro forma defendant and cannot be regarded as a judgment-debtor and it was not necessary that his legal representatives should be brought on the record. This contention is inconsistent with the main plea that he was a party to the decree and his mortgage, was therefore extinguished. A second mortgagee when, impleaded in a prior mortgagee's suit is not a pro forma defendant. He can redeem the earlier mortgage by paying up the decree amount at any time before the sale. He can apply to set aside the sale under Order 21, Rule 89 or 90. He can apply that the balance of the sale proceeds after discharging the prior mortgagee's dues may be paid to him. Though it is true that, what was mortgaged to the plaintiff in that suit was the mortgagor's property as it stood on 17-3-1896 and therefore, the plaintiff could get the property sold free of subsequent encumbrances, the plaintiff could do this only by a properly constituted suit and proceedings in execution i.e., by impleading the puisne mortgagee or his repre, sentatives and the interest of the mortgagor which the prior mortgagee would then be entitled to sell may be said to comprise, at the time of the sale, the interest of the subsequent mortgagees and the mortgagor's equity of redemption. I am therefore of opinion that Ayyasami was a judgment debtor in O.S. No. 11 of 1898.