Madras High Court
Srinivasa Ayyangar vs Ayyathorai Pillai on 9 December, 1897
Equivalent citations: (1898)ILR 21MAD416
JUDGMENT
1. We cannot accept the respondent's contention that no appeal lies in this case. The respondent before us, who is the purchaser, is the decree-holder. The question is one which arises in execution between him and the appellant before us who is also a party to the suit. The order therefore must be treated as one falling under Section 224, Code of Civil Procedure, and therefore appealable.
2. It is next objected that the appellant before us being only a mortgagee is not entitled to the benefit of Section 310 A Code of Civil Procedure. On the analogy of the decision in Rakhal Chunder Bose v. Dwarka Nath Misser I.L.R. 13 Cal. 346 we think that the appellant is an "owner of the immoveable property" within the meaning of Section 310A and his mortgage was subject to the right of the respondent under the mortgage decree in execution of which the sale took place, he would be affected by the sale, and should therefore be held entitled to ask for cancellation of the sale on making the payments prescribed by that Section Cf. Asmufunnissa Begum v. Ashruff Ali I.L.R. 15 Cal. 488, at pp. 491, 492]. We must therefore set aside the orders of the lower Courts and direct the petition to be restored to the file of the District Munsif, and the appellant must be allowed to pay into Court the sum payable under Section 310A within a time to be fixed by the District Munsif, and of which reasonable notice is to be given to both parties. If the payment is made within the time fixed, the sale should be set aside. In default, the petition will stand dismissed with costs throughout.