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Issues Involved:
1. Determination of the nature of the deed dated 12.04.1950 (Exhibit A6) and whether it created a charge or was merely an undertaking not to alienate the suit property. 2. The status of the appellant as a puisne mortgagee. 3. The applicability of Order XLI Rule 33 of the CPC in the context of the appellate court's powers. 4. The finality and res judicata effect of the trial court's decree for redemption. Issue-wise Detailed Analysis: 1. Nature of the Deed (Exhibit A6): The primary issue was whether the deed dated 12.04.1950 executed by Ganesan created a charge on the property or was merely an undertaking not to alienate it. The trial court concluded that Exhibit A6 created a charge, noting that the document was named as a security deed, had non-judicial stamps for Rs. 105, and specifically mentioned the suit property for Rs. 7,000 and subsequent interest and costs. The court found that the document evidenced an intention to create a charge for the payment of Rs. 7,000, costs, and interest. However, the High Court disagreed, stating that the security bond did not amount to a mortgage or create a charge on the land. It was merely an undertaking not to alienate the land until the decree in suit No. 108 of 1950 was discharged, which became void once the decree was passed. 2. Status of the Appellant as a Puisne Mortgagee: The appellant claimed the status of a second mortgagee based on the security bond (Exhibit A6) and the auction sale held on 14.12.1966. The High Court held that the appellant could not claim the status of a puisne mortgagee because the security bond did not create a charge. The decree in suit No. 108 of 1950 was a simple money decree, not a mortgage decree. Therefore, the appellant, who purchased the property in execution of that decree, did not acquire any rights as a mortgagee under Exhibit A6. 3. Applicability of Order XLI Rule 33 of the CPC: The High Court exercised its powers under Order XLI Rule 33 of the CPC to set aside the decree passed in favor of the appellant, despite the respondent not having filed an appeal against that part of the decree. The Supreme Court upheld this exercise of power, noting that Order XLI Rule 33 allows the appellate court to pass any decree or order that ought to have been made, even if the appeal is only against part of the decree and the parties have not filed an appeal. The Court emphasized that the rule enables the appellate court to pass such orders in exceptional cases to avoid anomalous or absurd results. 4. Finality and Res Judicata Effect of the Trial Court's Decree for Redemption: The appellant contended that the trial court's decree for redemption had attained finality and operated as res judicata because the respondent did not appeal against it. The Supreme Court rejected this argument, stating that when the entire matter was still in appeal, any part of the finding could be varied by the appellate court. The principle of res judicata did not apply as the matter had not attained finality. The High Court's finding that Exhibit A6 did not create a charge necessitated the dismissal of the appellant's suit for redemption, as maintaining the decree for redemption would have been inconsistent with the finding of non-existence of a charge. Conclusion: The Supreme Court dismissed the appeals, affirming the High Court's judgment that the security bond (Exhibit A6) did not create a charge and that the appellant did not acquire any rights as a puisne mortgagee. The Court upheld the High Court's exercise of powers under Order XLI Rule 33 of the CPC to set aside the decree for redemption in favor of the appellant, despite the respondent not having appealed against it. The trial court's decree for redemption did not attain finality and did not operate as res judicata in the context of the appellate proceedings.
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