Smt. Uma Khanna vs Smt. Madhur Bala Nath & Ors
2010 Latest Caselaw 892 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CM(M) No.1091/2009

%                                     Date of decision: 16th February, 2010

SMT. UMA KHANNA                                          ..... Petitioner
            Through:              Mr. B.L. Mehta, Advocate.

                                     Versus
SMT. MADHUR BALA NATH & ORS                              ..... Respondents
                     Through:     None.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.      Whether reporters of Local papers may
        be allowed to see the judgment?             No

2.      To be referred to the reporter or not?      No

3.      Whether the judgment should be reported     No
        in the Digest?

RAJIV SAHAI ENDLAW, J.

1. This petition under Article 227 of the Constitution of India has been

filed by the defendant in a suit which appears to have been pending since

1995 and aggrieved from an order dated 15th May, 2009 dismissing the

application of the petitioner/defendant under Order 7 Rule 11 of the CPC.

From the averments in the petition, it appears that the respondents/plaintiffs

instituted the suit against the petitioner/defendant for possession of

immovable property being portion of property No.9, Rajpur Road, Civil

Lines, Delhi, by redemption etc. The petitioner/defendant after nearly 14

years of the institution of the suit applied under Order 7 Rule 11 of the CPC

contending that the respondents/plaintiffs have sold the property and are

hence not entitled to continue the suit. It appears that no reply was filed by

the respondents/plaintiffs to the said application. The Learned Civil Judge,

Delhi before whom the suit was pending, vide order dated 15th May, 2009

impugned in this petition dismissed the application of the

petitioner/defendant holding inter alia that the suit as instituted discloses a

cause of action and the respondents/plaintiffs have also denied having sold

the property and an enquiry could not be conducted into the averments of the

petitioner/defendant of the respondents/plaintiffs having sold the property

and being thus not entitled to continue the suit.

2. The counsel for the petitioner/defendant has relied on Shipping

Corporation of India Ltd. Vs. Machado Brothers AIR 2004 SC 2093 laying

down that if the subsequent events render the suit infructuous, the court can

dismiss the suit after making necessary enquiry into the facts of the case.

Reliance is also placed on Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb

2004 (1) RCR (Civil) 216 where the Supreme Court has discussed the

implications of transfer of property during litigation without permission of

the court and on Sarvinder Singh Vs. Dalip Singh (1996) 5 SCC 539 where

a person in whose favour the alienation of the property was made during the

pendency of the suit was held not entitled to be impleaded as a party.

3. From the memorandum of petition preferred before this Court, it also

appears that applications have been filed by the transferees from the

respondents/plaintiffs under Order 22 Rule 10 of the CPC for substitution in

place of the respondents/plaintiffs. Though the entire suit record is not

available but the provisions of Section 52 of the Transfer of Property Act on

which the judgments aforesaid have been cited will have no application. The

rights of the respondents/plaintiffs to the property and to sell the property, do

not appear to be in question or for adjudication in the suit. Thus the

pendency of the suit was no bar to the sale by the respondents/plaintiffs of

their rights in the property together with the right to redeem the mortgage

and the transferees from the respondents/plaintiffs would be entitled to

continue the suit. Section 91 of the Transfer of Property Act provides that

besides the mortgagor any person after than the mortgagee who has any

interest in or charge upon the property mortgaged or in or upon the right to

redeem the same may redeem or institute a suit for redemption of such

mortgaged property. Upon Section 59-A of the Act also all persons who

derive title from the mortgagor are included in the term "mortgagor" and

therefore entitled to redeem. On a consideration of the above provisions, the

courts have held that the purchaser of the whole or part of the equity of

redemption has the right to redeem the mortgaged property. Reference in

this regard may be made to Samarendra Nath Sinha Vs Krishna Kumar

Nag AIR 1967 SC 1440. Such a right is based on the principle that he steps

in the shoes of his predecessor-in-title and has therefore the same rights

which his predecessor-in-title had before the purchase. I must, however, add

that else, the view of the Supreme Court and the various High Courts is

consistent that the right of redemption of mortgage also disappears by sale of

the title of the property by the mortgager. Reference in this regard may be

made to Narandar Karsondas Vs S.A. Kamtam AIR 1977 SC 774, A.

Granam Vs Paraniappa and Co. AIR 1963 Bom. 230. However, the

transferee from the mortgager as aforesaid is entitled to continue the suit and

applications in which regard appear to have been filed.

4. The exercise of jurisdiction under Article 227 of the Constitution of

India is even otherwise discretionary. The facts of the present case do not

justify the exercise of discretion in favour of the petitioner/defendant. The

suit has been pending for a long time and is under trial. Considering the

nature of the suit, entertaining this petition is likely to delay the disposal of

the suit.

The petition is therefore dismissed.

RAJIV SAHAI ENDLAW (JUDGE) February 16, 2010 pp