Judgment:
ORDER
P. Thangavel, J.
1. This Civil Revision Petition has been filed by the petitioner asrevision petitioner against the order and decretal order dated12.11.2001 and made in E.A.No.478 of 2000 in E.P.No.257 of 1996 in O.S.No.203 of 1998 on the file of the learned Subordinate J udge,Srivilliputhur.
2. The facts that are necessary for disposal of the Civil RevisionPetition are as follows:- The second respondent herein is the owner ofthe property described as fourth item in the execution petition inE.P.No.257 of 1996 and the said property was brought to sale in courtauction in execution of the decree obtained by one Lakshmi against thesecond respondent herein in O.S.No.72 of 1986 on the file of the SubCourt, Srivilliputhur for the amount due under a promissory note fromthe second responde t herein to the above said Lakshmi. The demised property was sold in Court auction in E.P.No.15 of 1989 in O.S.No.72of 1986 on 4.2.1994 and the said property was purchased by oneTamilselvam admittedly for a sum of Rs.12,000/-. The sale wasadmittedly confirmed on 29.4.1994 and a sale certificate was issued infavour of Tamilselvam by the execution Court. The above Tamilselvamsold the demised property in favour of the revision petitioner bymeans of a registered sale deed dated 21.11.1994 for Rs.12, 51/- andfrom that day he has been in possession and enjoyment of the saidproperty as absolute owner thereof. The fifth respondent is said tohave purchased the demised property and other properties on 10.12.1999in Court auction sale brought in execu ion of a mortgage decree inO.S.No.203 of 1988 on the file of the Sub Court, Srivilliputhurobtained against the second respondent by the first respondent. Therevision petitioner was not a party to the suit in O.S.No.203 of 1988or party to the executi n proceeding in E.P.No.257 of 1996 inO.S.No.203 of 1988 on the file of the Sub Court, Srivilliputhur.Pursuant to the sale certificate issued after confirmation of sale on1.3.2000, the fifth respondent herein is taking steps through Court totake deli ery of possession of the demised property from the revisionpetitioner. It is under the said circumstances, the revisionpetitioner has filed the said execution application to declare thatthe sale of the demised property described in the execution applcation in the Court auction on 10.12.1999 in E.P.No.257 of 1996 inO.S.No.203 of 1988 on the file of the Sub Court, Srivilliputhur andconfirmation of sale on 1.3.2000 are not sustainable and will notconfer any title in favour of the fifth respondent h rein.
3. The first respondent herein has resisted the claim made by therevision petitioner on the following grounds:- The first respondentherein is a registered chit fund company and the second respondent wasa subscriber of chit of denomination of Rs.1, 50,000/-. The second respondent herein beat chit on eighth month and received the amount on12.7.1984. after executing a promissory note. As security the secondrespondent deposited the title deeds of the property described in theexecution application on 17.8.1984 and other properties. Thereafter amemorandum was also given by the second respondent in favour of the first respondent with regard to the deposit of title deeds as securityon 17.8.1984 itself for the amount received on 12.7.1984. The sec ndrespondent has failed to pay the amount due to the first respondentand therefore a suit for recovery of the amount due to the firstrespondent from the second respondent was filed in O.S.No.203 of 1988and a preliminary decree was obtained on 27.4.19 3. A final decreewas passed on 29.1.1996. The properties were brought to sale in Courtauction in E.P.No.257 of 1996 in O.S.No.203 of 1988 on the file of theSub Court, Srivilliputhur and the fifth respondent purchased thedemised property and other roperties for Rs.43,300/-. The sale wasconfirmed in favour of the fifth respondent with regard to the demisedproperty and other properties on 1.3.2000 and sale certificate wasalso issued in his favour. The purchase of the demised property byTamilse vam will be subject to the mortgage by deposit of title deedsin favour of the first respondent. The sale of the demised propertyby Tamilselvam to the revision petitioner will also be subject to theabove said mortgage.
4. The fifth respondent herein while supporting the stand taken bythe first respondent herein contends that he has purchased the demisedproperty and other properties in the Court auction held on 10.12.1999in E.P.No.257 of 1996 in O.S.No.203 of 1988 p ursuant to the finaldecree obtained in the above said suit on 29.1.1996 and salecertificate was issued after confirmation of sale with regard to thedemised property and other properties in favour of the fifthrespondent on 1.3.2000. Hence the fifth r spondent is entitled to recover possession of the demised property. The revision petitionercannot claim that the fifth respondent is not entitled to recovery ofpossession from him or for the relief of declaration prayed for asmentioned above. Theref re, the respondents 1 and 5 herein sought fordismissal of the execution application filed by the revisionpetitioner.
5. After considering the material evidence available on record andafter considering the submission made on both sides, the executionCourt has come to the conclusion that the fifth respondent herein isentitled to recovery of possession of the demised property in view ofthe sale certificate issued by the competent Court, that the claimmade by the revision petitioner that a declaration has to be issuedthat the sale in Court auction in favour of fifth respondent herein inE.P.No.257 of 1996 in O.S.N .203 of 1988 on 10.12.1999 and confirmation of sale on 1.3.2000 is not sustainable and that thereforethe further claim that the fifth respondent has no right to thedemised property can not be sustained. Accordingly the executionapplication filed by he revision petitioner was dismissed by theexecution Court. Aggrieved at the order and decretal order dated12.11.2001 and made in E.A.No.478 2000 in E.P.No.257 of 1996 in O.S.No.203 of 1988 on the file of the Sub Court, Srivilliputhur, thepetitioner s revision petitioner has come forward with this CivilRevision Petition. 6. The point for determination is whether thereare grounds to interfere with the order and decretal order passed bythe Court below? 7. The revision petitioner was examined as P.W.1while P.W.2 M. Sankar and P.W.3 Manikandan were examined to support that P.W.1 is in possession of the demised property. Exs. P-1 toP-10 were also produced before the Court. The Manager of the firstresp ndent chit fund company, Vellaiyan was examined as R.W.1 while the fifth respondent Sethurajan was examined as R.W.2. Ex. R-1 was marked on the side of the respondents. 8. Admittedly the propertydescribed in the execution application by t he revision petitioner,who is a third party to the suit proceedings, belonged to the secondrespondent. The fact also remains that the second respondent was asubscriber in the chit of denomination of Rs.1,50,000/- run by thefirst respondent, a regist red chit fund company and he beat the chiton the eighth month and received the amount on 12.12.1983 from thefirst respondent after executing a promissory note. Thereafter thesecond respondent had deposited the document of titles with regard tothe roperty described in the execution application with the firstrespondent on 17.8.1984 followed by execution of a memorandum therefor. Therefore it is evident that the second respondent hascreated a mortgage by deposit of title deeds in favour of the f rstrespondent with regard to the demised property with effect from17.8.1984. As the second respondent has not paid the amount due to the first respondent, he filed a suit on mortgage by deposit of titledeeds and obtained the preliminary decree on 27 4.1993 in O.S.No.203of 1988 on the file of the Sub Court, Srivilliputhur and final decreewas also passed on 29.1.1996 in the suit in O.S.No.203 of 1988. It isequally not in dispute that the second respondent herein had borrowedsome money from one La shmi and executed a promissory note . The said Lakshmi filed a suit in O.S.No.72 of 1986 on the file of the SubCourt, Srivilliputhur against the second respondent and obtained adecree on 27.11.1986. In execution of the above said decree inE.P.No.15 of 1989 the demised property was brought to sale and thesaid property was sold for Rs.12,000/- in favour of one Tamilselvam inCourt auction on 4.2.1994 which was long after passing of thepreliminary decree on 27.4.1993 in O.S.No.203 of 1988 on the fil ofthe very same Court. The fact also remains that the sale wasconfirmed and sale certificate was issued in favour of Tamilselvam on29.4.1994 as seen in Ex. P-2 dated 24.10.1994, registration copy ofsale certificate. Tamilselvam, who had not taken elivery of thedemised property through Court, had sold the demised property infavour of the revision petitioner on 21.11.1994 for Rs.12,151/-as seenin Ex. P-3. The revision petitioner who claims to be in possessionof the demised property gets suppor from P.Ws.2 and 3 who are said tobe in possession of the shops bearing door Nos.173 and 173-A respectively in the demised property. 9. Admittedly the demisedproperty was brought to sale in E.P.No.257 of 1996 on the file of theSub Court, Srivilliputhur in execution of the mortgage decree bydeposit of title deeds and the fifth respondent, who is said to be arelative of the second respondent herein, had purchased the saidproperty in Court auction on 10.12.1999. Admittedly the s le wasconfirmed in favour of the fifth respondent with regard to the demisedproperty and other properties and a sale certificate was issued in hisfavour on 1.3.2000. It is when the fifth respondent has taken stepsthrough execution Court to take del very of the demised property, therevision petitioner has come forward with an application for thereliefs referred to above. From the facts narrated supra it is clearthat the revision petitioner is claiming right to the demised propertythrough Tamils lvam who was the auction purchaser in the executionproceedings initiated for recovery of amount due on promissory note insimple money decree. The fifth respondent claims right and title overthe demised property by purchasing the same in the executionproceedings initiated for recovery of the amount due under mortgage bydeposit of title deeds by the second respondent in favour of the firstrespondent in this Civil Revision Petition. 10. In M.N. NAGENDRANCHETTIAR vs. - LAKSHMI AMMAL, A.I.R. 1933 Mad 583, a Full Bench of this Court dealt with rival claims made for possession ofproperty which was subject matter of two separate mortgages in favourof two different persons after sale of such property separately ineach of two xecution proceedings initiated for sale of the sameproperty to realise the amount due to the respective mortgagees. Inthat it was held as follows:- 'I may here observe in passing that asbetween two rival purchasers, the title to the outstanding equity ofredemption is determined by the priority, not of the respectivemortgages, but of the respective sales.' So it is clear from thedecision of this Court, even if there was rival claim between twomortgagees claiming under two different mortgages, the title to theproperty has to be decided not on the date of execution of suchmortgages, but on the priority o the sales of the property in suchmortgages. It is also evident that the purchasers will be purchasingthe title to the outstanding equity of redemption alone in theproperty purchased. It is relevant to point out that the revisionpetitioner who is s epping into the shoes of the auction purchaser inexecution of a simple money decree due on promissory note cannot be equated with an auction purchaser pursuant to the decree obtained onmortgage by deposit of title deeds since the provisions of simple mrtgage are applicable to a mortgage by deposit of title deeds as perthe decision of a Division Bench reported in MRS. ROSY GEORGE -vs.- STATE BANK OF INDIA AND OTHERS, wherein it was held as follows:- 'By virtue of Section 96 of Transfer ofProperty Act the provisions of simple mortgage are applicable to amortgage by the deposit of title deeds.' In IMPERIAL BANK OF INDIA -vs. - U RAI GYAW THU. AND CO. LTD., A.I.R. 1923 P C 211 it was held that a mortgage by deposit of title deeds have been put onthe same footing as a mortgage by deed by section 58 of the Transferof Property Act. In ACHPAL MAHRAJ vs. - BHAGWANDAS DARUKA AND OTHERS , the Honourable Apex Court consisting of three Honourable Judges have held as follows:- 'A mortgage by deposit oftitle deeds is a form of mortgage recognised by section 58(f) of theTransfer of Property Act which provides that it may be effected incertain towns (including Calcutta) by a person 'delivering to hiscreditor or his agent documents of title to immovable property withintent to create a secu rity thereon'. That is to say, when thedebtor deposits with the creditor the title deeds of his property withintent to create a security, the law implies a contract between theparties to create a mortgage, and no registered instr ument isrequired under section 59 as in other forms of mortgage.' In this casethe title deeds of the second respondent herein with regard to thedemised property were deposited by him with the first respondent forthe money already received by him as security for the repayment of thesaid amount. The memorandum filed subsequently in connection with the deposit of title deeds relating to the demised property by the secondrespondent to the first respondent for the money already received fromthe first respondent by the second respondent will not requireregistration i view of the decision of the Honourable Apex Courtreferred to above. The principle laid down by the Honourable ApexCourt in the case law cited above was followed and held thatmemorandum is not compulsorily registrable in the absence of anyevidence t show that it was executed either simultaneously or prior tothe deposit of title deed, in the decision of Kerala High Courtreported in JOSEPH vs . - MICHAEL, . It is relevant to point out that it is not the case of the revisionetitioner that any memorandum was given by the second respondent in favour of the first respondent simultaneously or prior to the depositof title deed in this case. Therefore this Court holds that themortgage by deposit of title deeds created by the s cond respondentherein in favour of the first respondent herein with regard to thedemised property requires no registration. 11. In SAMARENDRA NATH SINHA -vs. - KRISHNA KUMAR NAG, , the Transfer of Property Act does not strictly apply to involuntaryalienations like, court sales, but principle of lis pendens applies tosuch alienations. The Honourable Apex Court in KEDARNATH LAL -vs. - Honourable Apex C ourt was pleased to hold that section 52 of theHEONARAIN, was pleased to hold as follows:- 'The proceedings in respect of themortgage were pending from April 8, 1934 to July 20, 1937. Theproceedings were for obtaining a mortgage award equ ivalent to amortgage decree and not for a money decree. The fact that they wereattached before judgment in D's suit does not affect the applicationof the doctrine of lis pendens. Attachment is only effective inpreventing alienation and does no t create title to property. If, infact the property was acquired pendente lite, the acquirer is bound bythe decree ultimately obtained. Therefore, D's purchase on August 13,1934, was hit by the doctrine of lis pendens section 52 of theTransfer of Property Act, 1882'. 12. The Honourable Apex Court inJAYARAMA MUDALIAR -vs. - AYYASAMI, approved the decision in SAMARENDRA NATH SINGH vs . KRISHNA KUMAR : [1967]2SCR18 wherein it was held as follows:- 'The purchaser pendente lite under this doctrine is boundby the result of the litigation on the principle that since the resultmust bind the party to it so must it bind, the person deriving hisright, title interest from or through him. This principle is wellillustrated in RODHAMADHUJ HOLDER vs. - MANOHAR, 15 I.A.97, where the facts were almost similar to those in the i nstant case. It istrue that section 52 strictly speaking does not apply to involuntaryalienations such as court sales. But it is well established that theprinciple of lis pendens applies to such alienations.' The aboveobservations of the Honourable Apex Court were approved by theHonourable Apex Court in KEDARNATH LAL - vs . - SHEONARAIN, . The principles laid down in the decisions referred to above would learly show that theprinciple of lis pendens applies to Court auction sales also.Following the ratio laid down by the Honourable Apex Court in thecases cited above, a learned single Judge of this Court(K.M.NATARAJAN, J.) in SAMBANDA MUDALIAR vs. - MUTHUSWAMI MUDALIAR has held as follows relying on other decisionsreferred to here under:- '...on the earlier decision of the PrivyCouncil reported in JADUNATH vs. - PARAMESWAR, A.I.R. 1914 PC 11, where it w as held: 'While the purchaser at an auction sale under a mere money decree gets no more than the right, title andinterest of the judgment-debtor at the date of the sale, the purchaserunder a mortgage decree gets the right, titl e and interest in themortgaged subject which the mortgagor had at the date of mortgage andcharged thereby. Buying the mortgaged property free from incumbranceshe gets, as it is sometimes put, the title both of the mortgagee andof those interested in the equity of redemption...' In SUBBA RAO vs.- VENKATASESHACHARLU, (1948) 1 M.L.J. 128 : 61 L.W. 435 : A.I.R. 1949 MAD 207 it was held:- 'Where a property was sold and was purchased by A in execution o f his decree during the pendency on amortgage suit in respect of that property and A obtained possessionthereof and the mortgagee in execution of the decree made in hisfavour in that suit purchased the property himself: Held, that A,having purchased the property pendente lite, must be treated as arepresentative in interest of the judgment debtor and, therefore, apetition by the mortgagee decree holder for possession of the propertypurch ased by him was maintainable against A' The said decision alsois applicable on all force to the facts of this case. In view of theratio in the decisions cited above, I am of the view that the moneydecree-holder being the representativ e in interest of the judgmentdebtor is bound by the mortgage decree and that he had purchased onlythe right of redemption of the mortgage debt.'Therefore in this case the mortgage by deposit of title deeds withregard to the demised property was created by the second respondent infavour of the first respondent admittedly even on 17.8.1984 and apreliminary decree was obtained even on 27.4.1993 in O.S.No.203 of1988 on the file of the Sub Court, Srivilliputhur based on themortgage by deposit of title deeds. A final decree was also passedsubsequently on 29.1.1996. It is after passing of preliminary decreeon 27.4.1993 the property was brough to sale in E.P.No.15 of 1989 inO.S.No.72 of 1986 on the file of the Sub Court, Srivilliputhur inexecution of simple money decree on promissory note and the property was sold on 4.2.1994 in Court auction in favour of Tamilselvam fromwhom the revision etitioner had purchased thereafter under Ex. P-3dated 21.11.1994. If the ratio of the decisions referred to above areapplied, this Court is of opinion that the revision petitioner whoclaims his right through the money decree holder is only a represenative in interest of the judgment debtor and therefore he is bound bythe mortgage decree and that he had purchased only the right ofredemption of the mortgage debt. The title to the outstanding equityof redemption between two rival purchasers, viz., ne under simplemoney decree and another under mortgage by deposit of title deedcannot be determined by the priority in the date of sales as in thecase between two rival claimants of two different mortgages in theirfavour on the priority of the respec ive sales and not on respectivemortgages. 13. The learned counsel for the revision petitioner has brought to the notice of this Court, the decision reported in A.M.E.P.MOHAMMED ISMAIL AND OTHERS vs . - S.A.S. ALAGAPPA CHETTIAR wherein it was held as follows:- '...if by process of lawor by a compelling situation sanctioned by law, the security given toa creditor metamorphoses itself and changes into something other thanthe property which constituted the origi nal security, then amortgagee or a charge- holder over the quandom property is nothelpless but he could trace his right to such metamorphosed securityunder the doctrine of substituted security enunciated in section 73 ofthe Transfer of Pro perty Act.' Relying on this decision a learnedsingle Judge of this Court in EASWARAN vs . - T.K. VENKATACHALAM AND OTHERS has held that there was no patent error of law or perversity in the approach of the lower Court in orderi ngrestitution of possession of property purchased by the money decreeauction purchaser, since the purchase of the auction purchaser inexecution of a mortgage decree was seven years after delivery ofpossession to the money decree auction purchaser. 14. A perusal ofthe judgment of the learned single Judge reported in l977(1) M.L.J. 76 cited supra would disclose that it was not brought to the notice ofthe learned single Judge of this Court while the decision was renderedin the c ase cited above about the various decisions of the HonourableApex Court and the Privy Council referred to above and therefore therewas no occasion for the learned single Judge to consider the decisionsreferred to above. It is based on such decision, another learnedsingle Judge of this Court has followed the said ruling in . The principles laid down by the learned single Judgesseparately in the decisions referred to above are contra to thedecision of the Honourable Apex Court s well as the Privy Council.This Court prefers to follow the decision of the Privy Council,Honourable Apex Court and also the decision reported in . In view of the said decision, this Court holds that thedecisions relied on by the earned counsel for the revision petitionercannot come to the rescue of the revision petitioner in any respect.In the said circumstances, this Court finds no error in coming to theconclusion by the Court below that the revision petitioner aspetitione before the execution Court is not entitled to the reliefssought for in the petition filed by him. 15. In fine, this CivilRevision Petition is dismissed, but in the circumstances of the casewithout costs. Consequently, connected C.M. P.No.20986 of 2001 is closed.