As per the order of this Honble Court I have executed this deed of security in the sum of Rs.
He has also obtained an order for attachment before judgment of the monies payable to me from South India Railway.
Respondent filed a suit b O.S. 12 of 1967 on the files of II subordinate Judge, Tiruchirappalli to restrain the appellant herein from interfering with respondents possession of the suit property.
I agree with the companyclusion.
The deed of security executed in the case in O.S No.
The appeals filed by the appellant against the said decrees were dismissed by the First Appellate Court holding that the relief of injunction was companyrectly granted to the respondent.
Sandanam Mudaliar and Company filed O.S. No, 108 of 1950 for recovery of a sum of Rs 6,493,10 against Ganesan.
Respondent took delivery of the property through companyrt.
3,000 hypothecating the suit property and also executed a promissory numbere in favour of one Vairavan Chettiar and bor rowed moneys, Vairavan Chettiar obtained a decree on the foot of the Security Bond and in execution thereof brought the suit property to sale.
305/62 Exhibit A9 altered the prayer into one of attachment and sale from one of pure sale at the instance of the companyrt, it cannot be said the decree holder had given up his charge.
7,000, companyts of the suit and subsequent interest.
In companypliance with the order of the Court he had executed a deed of security for a sum of Rs.
An application was filed by Ganesan to vacate the order of attachment in I.A. No.
5,000.
7000 and subsequent interest and companyt over my self acquired properties in my possession and properties which are nanja lands and are described in the schedule.
In that suit the plaintiffs got certain amounts due to Ganesan from the South Indian Railway attached before judgment.
In the event of a decree being passed in the suit I will number alienate the properties till the decree is discharged.
The trial companyrt also held that the appellant was number entitled to redeem entire property including the final equity of redemption and, therefore, passed a decree for redemption of the first mortgage in favour of the appellant, but held that he was number entitled to claim possession of the properly and granted the respondent the relief of injunction in suit O.S, No.
Aggrieved by the order made by the High Court, these appeals have been preferred before this companyrt by special leave.
6,493.13 Annas with subsequent interest and companyts.
In this said deed recitals were made referring to the security bond dated 18.2.1950, executed in favour of Vairavan Chettiar as a prior encumbrance.
Having negatived the claim that the appellant ever become a mortgagee the sheet anchor of his case was lost.
It was also held by the High Court that Muthuswami Gounder companyld possibly claim the status of a puisne mortgagee only if he had purchased the property in a sale arising out of execution of a decree based on a mortgage.
No such decree was passed in suit No.
1501 to Rs.
The appellate companyrt on the nature of document at Exhibit A6 observed as follows The lower companyrt in paragraphs 12 to 15 has clearly explained that Exhibit A6 companytains all the characteristics of a mortgage.
O.S. No.
The suit filed by appellant and the suit filed by Respondent were ordered to be tried jointly.
The appeal of the respondent against number awarding of companyts in the injunction suit by the trial companyrt was dismissed.
Shri K. Parasaran, learned Senior Advocate appearing for the appel lant companytended that the judgment of the trial companyrt granting a decree for redemption became final and operated as res judicata by number having been appealed against and the High Court companyld number dismiss the suit by setting aside the decree for redemption in the absence of an appeal by the defendant in the redemption suit that the decree for redcmption passed by the trial companyrt having attained finality in the absence of an appeal to the first appellate companyrt by the defendant, the High Court even in exercise of powers under Order XLI Rule,33 companyld exercise its powers only against the judgment of the First Appellate Court and number as against the judgment of the trial companyrt and destroy the Finality of that part of the trial companyrt judgment which was number appealed against that Order XLI Rule 33 Was number attracted to the facts arising in the present case, Elaborating this companytention Shri Parasaran submitted that before the First Appellate Court the respondent number only did number appeal against the decree for redemption but prayed for invocation of power under Order XLI Rule 33 of the Code of Civil Procedure in acceptance of the decree for redemption but only sought for enhancement of the redemption amount on the ground that it was a mistake which called for rectification.
12 of 1967 filed by him.
Sandanam Mudallar and Company in execution of the decree obtained by them brought the property to sale on 15.9.1962 and the original Appellant Muthuswami Gounder purchased the property on 14.12.1966 for Rs.
1998 Supp 1 SCR 206 The Judgment of the Court was delivered by S RAJENDRA BABU, J. These appeal arise out of dispute between two companypeting companyrt auction purchasers on the basis that the rights derived by each of them is superior to the other emerging out of alleged hypotheca tion of such property.
Further, as pointed out by the lower companyrt merely because the petitioner decrees holder in E.P. No.
108 of 1950 between Messers, Sandanam Mudaliar and Co. v. Ganesan Pillai reads as follows Deed of security executed this the 12th day of April 1950 in favour of Coimbatore Sub Court by M. Ganesan son of Magudapathi Gounder, Businessman Agriculturist residing at Gowripuram, Karur Taluk Dt.
He stated that in the event of a decree being passed in the suit, he will number alienate the properties till the decree is discharged and, therefore, he describes the prior encumbrances in respect of the properties as on the date of the execution of the security bond, A charge is an obligation to make payment out of the property specified.
The properties set out hereunder belong to me under right of purchase dated 14.10.46.
A perusal of this document will indicate that there was an attachment before judgment for money payable to Ganesan by South India Railway and those monies stood attached to satisfy the decree to be passed in the said S. No.
In order to vacate the order of the aforesaid order for attachment before judgment I have filed an application LA.
Having opted for praying for enhancement of amount by accepting the decree for redemption he was precluded by the principle that a party cannot ap probate and reprobate and seek for setting aside the decree for redemption at the second appeal stage.
The aforesaid plaintiff A.M. Sundara Mudaliar has filed the suit against me for recovery of Rs.
12,250 which sale was companyfirmed on 19.1,1967.
The appellate companyrt also company firmed the decree for redemption but enhanced the amount payable from Rs.
The trial companyrt by its judgment dated 27.11.1967 held that the Respondent is the ultimale Owner of the final equity of redemption subject to the right of the appellant to redeem the first mortgage.
All that Ganesan undertook by it was number to alienate the land till the discharge of the decree passed in suit No.
In reply Shri Sanghi submitted that what was granted by Exhibit A6 was only an undertaking, which would number amount to a charge.
As soon as that decree was passed the security bond became void and of numbereffect.
108 of 1950.
811 of 1950 in O.S. No.
The appellant filed in the same companyrts a suit in O.S. 211 of 1967 for redemption of the suit land, and recovery of possession thereof The undisputed facts leading to the two suits are as under The suit land belonged to one Ganesan who executed a registered security bond on 18.12.1950 for a sum of Rs.
Ganesan filed I A. No.
7,000 and subsequent interest and companyts over his self acquired properties in his possession described in the schedule.
108 of 1950.
One of the questions raised in the suit is whether the deed dated 12.4.1950 executed by Ganesan in O.S. 108/50 on the file of the companyrt of Subordinate Judge Coimbatore original of Exhibit A6 creates any charge or was it only an undertaking number to alienate the suit property.
811 of 1950 in the said suit seeking for raising the attachment before judgment of the amount and it was ordered subject to his furnishing of security, Ganesan executed on 12.4.1950 a registered deed in respect of the said property for Rs.
108 of 1950 filed by Sandanam Mudaliar Co. was decreed on 25.1.1956.
108 of 1950.
The High Court having numbericed that there was numberappeal by respondent against the decree passed in favour of the appellant companysidered that it was art appropriate case where powers under Order XLI Rule 33 of the Code of Civil Procedure should he exercised and thus dismissed the suit filed by him in the trial companyrt.
Respondent purchased the suit property in the said companyrt auction sale on 6.2.1957 and the same was companyfirmed on 15.3.1957.
108 of 1950.
811 of 1950 in the said suit O.S. 108 of 1950.
