SRINIVASA AIYANGAR Vs. VELLAYAN AMBALAM

JUDGEMENT

(1.) The suit property belonged to one Venkata ranganadha Naicker. It was sold in Court auction on the 13 of July, 1891 in execution of a small pause decree obtained against him and was purchased by the predecessor-in-title of the appellant. The sale was confirmed on the 14 of September, 1891. The property was attached before sale and during the pendency of the attachment it was mortgaged on the 15 of June 1891 by Venkataranganadha Naicker to the predecessor-in-title of the defendant. The plaintiff-appellant has brought this suit for redemption of the mortgage on the ground that the defendant is only a mortgagee and that he being the owner of equity of redemption is entitled to redeem the property. The District Munsif decreed the appellant's suit, but the Subordinate Judge reversed it on the ground that the defendant had acquired a good title by prescription. On second appeal Madhavan Nair, J., held that the appellant's suit was barred under Art. 137 of the Limitation Act.

(2.) It is contended by Mr. Bhashyam Aiyangar for the appellant that the defendant is only a mortgagee and what was sold on the 13 of July, 1891 was only the equity of redemption and that he is, therefore, entitled to redeem the property. The defendant got an assignment of the otti of the suit property on the 29 of August, 1909. There is a recital in the deed of assignment that the land was being enjoyed as per otti and hypothecation deeds and that the assignee should enjoy the lands as per deeds above referred to. On the strength of this recital it is contended that the defendant has been in possession of the property only as a mortgagee and he cannot therefore be said to have acquired any title to the property against the appellant.

(3.) When property is sold in Court auction what is sold is the right, title and interest of the judgment-debtor as it is on the date of the sale, and any private alienation or transfer pending the attachment is void against all claims enforceable under the attachment. Under Section 64 of the Civil P. C. an auction purchaser gets title to the property free of any encumbrance or any title created by the judgment-debtor; after the property was attached is to preserve the title of the judgment-debtor as it was on the date of the attachment for the benefit of the attaching creditor and, therefore, any title created after the date of the attachment to the prejudice of the attaching creditor cannot avail against the judgment- creditor as well as the auction-purchaser. The auction-purchaser gets it free from any encumbrance or any burden that might have been created by the judgment-debtor after the date of the attachment. The mortgage of the 15 of June, 1891 could not have created a title against the auction-purchaser. The auction-purchaser obtained symbolical delivery of the property. He should have asked for possession of the property, and if he did the Court would have delivered the property to him, for the mortgagee claimed only under the judgment- debtor, and his possession, therefore, was the possession of the judgment-debtor and if he was unable to obtain possession he should have enforced his right by suit. The proper article applicable to a case like this is Art. 138 of the Limitation Act.