9911796707
TMI Blog1938 (3) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... loan of ₹ 20,00. Plaintiff's predecessor instituted a suit on the basis of this mortgage against the mortgagors and obtained a decree, and in execution of the said decree they purchased the mortgaged lands on 26th August 1930. They obtained possession on 17th November 1931. Thereafter, the plaintiff continued to be in possession till September 1935. In-that month the defendants erected a building forcibly on the land mentioned in Schedule 2; of the plaint. There was a criminal case. Plaintiff was unsuccessful in that case. On 20th December 1935, plaintiff raised the-present suit for declaration of her title and for possession. Only defendants 2 and 4 contested the suit. Their defence in substance is this : The land of Schedule 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n possession of the lands of Schedule 2 on payment of a proportionate share of the decretal amount with interest. He accordingly made an order remanding the case to the lower Appellate Court for ascertaining the amount which is to be paid by defendants 1 to 4 in pursuance of his order. Hence this appeal by the plaintiff under Clause 15, Letters Patent. 2. Two points were urged in support of this appeal on behalf of the plaintiff : (1) That the defendants 1 to 4 were bound by the mortgage decree and the sale held thereunder and consequently they are not entitled to retain possession by redeeming the mortgage; (2) That even if they are entitled to redeem, they are bound to redeem the mortgage in its entirety. A simple mortgage is a contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aged property discharged of his own lien. But if in fact he sells nothing and the sale is liable to be set aside, because the mortgagor had no property to sell, the mortgagee's lien cannot pass to the purchaser. In spite of the sale, it remains in the mortgagee. But where however, as in the present case, the mortgagee sells something, the sale, though it fails to be effectual in every other respect, operates as an assignment of the mortgage to the purchaser and he can use it for his own protection. Plaintiff in the present case cannot fall back on the mortgage as admittedly the right to enforce the mortgage was barred by limitation before the institution of the present suit. She cannot therefore now compel defendants 1 to 4 to redeem he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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