(Prayer: Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 24.09.1987 passed in Appeal Suit No.87 of 1986 by the Sub Court, Tenkasi reversing the Judgment and decree dated 08.04.1986 passed in Original Suit No.53 of 1982 by the District Munsif Court, Ambasamudram.)

1. Challenge in this second appeal is to the Judgment and decree dated 24.09.1987 passed in Appeal Suit No.87 of 1986 by the Sub Court, Tenkasi, wherein the Judgment and decree passed in Original Suit No.53 of 1982 by the District Munsif Court, Ambasamudram are reversed.

2. The appellants herein as plaintiffs have instituted Original Suit No.53 of 1982 on the file of the trial Court for the reliefs of redemption and recovery of possession, wherein the present respondents have been shown as defendants.

3. The nubble of the plaint is that the suit properties are belonged to the father of the plaintiffs viz., Narayana Pillai and on 17.02.1956, he executed a usufructuary mortgage deed in favour of the first defendant and accordingly he has given possession of the suit properties to the first defendant. The father of the plaintiffs is nothing, but a debtor under Act 38 of 1972. The plaintiffs have given a notice dated 22.04.1978 to the first defendant. After receipt of the same, the first defendant has given a reply notice containing false allegations. The proceedings mentioned in S.C.No.94 of 1955 are nothing, but fictitious and collusive. As per the proceedings mentioned in S.C.No.94 of 1955, no tangible interest is created in favour of Sankarapandian Pillai, the alleged Court auction purchaser. Since the plaintiffs are nothing, but co-mortgagors they are entitled to file the present suit for the reliefs sought for therein. The plaintiffs are also entitled to get the benefits of Act 40 of 1978. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint.

4. The epitome of the written statement filed on the side of the defendants is that it is false to aver that on 17.02.1956 a usufructuary mortgage has been created in favour of the first defendant and possession of the property mentioned therein has been given to him. On 30.06.1952, the first defendant has created a mortgage deed in favour of the wife of the first defendant for a sum of Rs.1,800/- and subsequently another mortgage has been created in favour of one Muthusamy Asari for a sum of Rs.1000/-. One Nalayira Kudumban, S/o. Pitchaikkara Kudumban has instituted S.C.No.94 of 1955 against Narayana Pillai on the file of the District Munsif Court, Ambasamudram, wherein the suit properties have been attached. By way of suppressing the attachment and also with the intention of deceiving the first defendant, the said Narayana Pillai has created the mortgage deed dated 17.02.1956 and no possession has been given. In S.C.No.94 of 1955, the suit properties have been sold in Court auction. In the Court auction, one Sankarapandian Pillai has purchased the suit properties and Court auction sale has been subsequently confirmed and thereafter a Sale Certificate has been issued in the name of the Court auction purchaser. The Court auction purchaser has also taken possession of the properties mentioned in Sale Certificate. The Court auction purchaser viz., Sankarapandian Pillai has sold the suit property in favour of the wife of the first defendant viz., Muthammal and now the said Muthammal is in possession and enjoyment of the suit properties as of rightful owner. It is false to say that the plaintiffs are entitled to get the various benefits available under Act 40 of 1979. There is no merit in the suit and the same deserves to be dismissed.

5. In the reply statement filed on the side of the plaintiffs, it is averred that as per the terms of mortgage deed dated 17.02.1956, the first defendant has been directed to enjoy the suit properties in lieu of interest payable under the mortgage created in the name of the wife of the first defendant on 30.06.1952. It is false to contend that the Court auction purchaser viz., Sankarapandian Pillai has derived title to the suit properties by virtue of his alleged purchase. The said Sankarapandian Pillai has purchased the suit properties through the Court auction on behalf of the father of the plaintiffs. The said Sankarapandian Pillai is nothing, but an ostensible owner. Further he is nothing, but a name lender and in benami he purchased two items of suit properties through Court auction. The first defendant as mortgagee of Narayana Pillai cannot set up adverse to his interest. Under the said circumstances, the suit is liable to be decreed as prayed for.

6. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after evaluating both the oral and documentary evidence has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendants as appellants have filed Appeal Suit No.87 of 1986 on the file of the first appellate Court.

7. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed the appeal and thereby set aside the Judgment and decree passed by the trial Court and consequently dismissed the suit with costs. Against the Judgment and decree passed by the first appellate Court, the present second appeal has been preferred at the instance of the plaintiffs as appellants.

8. At the time of admitting the present second appeal, the following substantial questions of law have been settled for consideration:

a) Whether the respondents could resist the suit for redemption when the sale deed from the Court auction purchaser under whom they claim paramount title is not produced and when the Court auction purchaser himself has attested Ex.A.1 Othi deed under which the 1st defendant has taken possession?

b) Whether the lower appellate Court is right in holding that the non-production of the sale deed under which the respondents claim is justified on the ground that the sale deed is not registered?

9. On the basis of the rival submissions made on either side, this Court has allowed the present second appeal by its Judgment and decree dated 22.09.1999, wherein the Judgment and decree passed by the first appellate Court are reversed and the Judgment and decree passed by the trial Court have been restored. Against the Judgment and decree passed by this Court on 22.09.1999, the aggrieved respondents/defendants have preferred Civil Appeal No.1049 of 2001 on the file of the Hon'ble Apex Court.

10. The Hon'ble Apex Court without going into the merits of the appeal has set aside the Judgment and decree of this Court passed on 22.09.1999 and remitted the same to the file of this Court stating that this Court has not rendered its Judgment on the basis of the substantial questions of law settled in the present second appeal.

11. Before contemplating the rival submissions made by either counsel, it would be condign to marshall the following factual aspects as enunciated in the plaint as well as in the written statement.

12. In the plaint, it is specifically averred that the suit properties are the absolute properties of Narayana Pillai, who is none other than the father of the plaintiffs and he executed a usufructuary mortgage deed on 17.02.1956 in favour of the first defendant and prior to the said mortgage deed, he executed a mortgage deed dated 30.06.1952 in favour of Muthammal, wife of the first defendant. Since the said Muthammal has pressed him to pay interest for the mortgage amount, subsequently the usufructuary mortgage deed dated 17.02.1956 has been created in favour of the first defendant, wherein he has been authorised to enjoy the suit properties in lieu of interest. The original owner of the suit properties viz., Narayana Pillai has indebted heavy debts and in order to save his properties including the suit properties, he set up one Nalayira Kudumban, S/o.Pitchaikkara Kudumban to institute S.C.No.94 of 1955, wherein the suit items 1 and 2 have been brought for sale through Court auction and one Sankarapandian Pillai has purchased the same through Court auction in benami and he is nothing, but a name lender and also ostensible owner and further he put his signature as an attestor in the usufructuary mortgage deed dated 17.02.1956. Since the first defendant has been enjoying the suit property as a usufructuary mortgagee, he is bound to surrender possession of the suit properties to the plaintiffs. Under the said circumstances, the present suit has been instituted for the reliefs sought for therein.

13. In the written statement filed on the side of the defendants, it has been specifically averred that the original owner of the suit properties viz., Narayana Pillai has executed a mortgage deed in favour of the wife of the first defendant viz., Muthammal on 30.06.1952 and thereafter on 16.03.1953 he executed another mortgage deed in favour of one Muthusamy Asari and one Nalayira Kudumban, S/o.Pitchaikkara Kudumban has instituted S.C.No.94 of 1955 on the file of the District Munsif Court, Ambasamudram against the original owner of the suit properties viz., Narayana Pillai, wherein the suit properties have been brought for sale through Court auction and in the said Court auction Sankarapandian Pillai has purchased the same and subsequently taken possession of the same and after enjoying the same for certain years, he sold in favour of the wife of the first defendant and thus the wife of the first defendant has become absolute owner of the suit properties and in view of the proceedings made in S.C.No.94 of 1955 and also in view of the Court auction, wherein the suit properties have been purchased by the said Sankarapandian Pillai and subsequently he sold the suit properties in favour of the wife of the first defendant, the plaintiffs are not entitled to get the reliefs sought for in the plaint and therefore the present suit deserves to be dismissed.

14. On the basis of the rival pleadings raised on either side apart from the substantial questions of law settled in the present second appeal, the following both the factual and legal aspects have become emerged:

(a) Is the suit mortgage deed dated 17.02.1956 true and valid?

(b) Is it legally correct to say that the Court auction purchaser viz., Sankarapandian Pillai has purchased the properties which have been mentioned in S.C.No.94 of 1955 in benami on behalf of the original owner of the suit properties viz., Narayana Pillai and therefore he is nothing, but an ostensible owner?

(c) What is the legal effect of Court sale? and

(d) Are the plaintiffs having legal right to institute the present suit for the reliefs sought for in the plaint?

15. The usufructuary mortgage deed alleged to have been executed by Narayana Pillai in favour of the first defendant has been marked as Ex.A1. The Sale Certificate issued in S.C.No.94 of 1955 in E.P.No.296 of 1955 has been marked as Ex.B1. The delivery acknowledgement emerged in E.P.No.670 of 1956 has been marked as Ex.B2. The mortgage deed dated 16.03.1953 executed by Narayana Pillai in favour of Muthusamy Asari has been marked as Ex.B3. The receipt executed by Muthusamy Asari in favour of Sankarapandian Pillai has been marked as Ex.B4. On the basis of the documents referred to supra, the Court has to excogitate the rival submissions made by either counsel.

16. The learned counsel appearing for the appellants/plaintiffs has vehemently contended that the suit properties are originally belonged to Narayana Pillai, the father of the plaintiffs and during his lifetime he has executed a mortgage deed dated 30.06.1952 in favour of Muthammal, wife of the first defendant and since she pressed for payment of interest for the mortgage money, he executed the suit usufructuary mortgage deed dated 17.02.1956 in favour of the first defendant and in pursuance of the same, the first defendant has been put into possession of the suit properties and the original owner of the suit properties viz., Narayana Pillai has indebted heavy debts and in order to save his properties including suit properties, he set up one Nalayira Kudumban, S/o.Pitchaikkara Kudumban to institute S.C.No.94 of 1955 on the file of the District Munsif Court, Ambasamudram, wherein the suit items 1 and 2 have been brought for sale through Court auction and he set up one Sankarapandian Pillai to purchase the suit items 1 and 2 and accordingly he purchased the same through Court auction in benami on behalf of the original owner of the suit properties viz., Narayana Pillai and no title is passed in favour of the said Sankarapandian Pillai and he has not taken possession of the suit properties involved in S.C.No.94 of 1955 and since the suit mortgage deed dated 17.02.1956 has been executed by the original owner of the suit properties in favour of the first defendant and after his demise the plaintiffs as his legal heirs are entitled to get the reliefs sought for in the plaint, the trial Court has rightly decreed the suit, but the first appellate Court has erroneously reversed the Judgment and decree passed by the trial Court and further the sale held in S.C.No.94 of 1955 in E.P.No.296 of 1955 is nothing, but a fictitious one and under the said circumstances the Judgment and decree passed by the first appellate court are liable to be interfered with.

17. As a riposte, the learned counsel appearing for the respondents/defendants has argued that one Nalayira Kudumban, S/o.Pitchaikkara Kudumban has instituted S.C.No.94 of 1955 against the original owner of the suit properties viz., Narayana Pillai, wherein the suit properties have been attached and subsequently in E.P.No.296 of 1955, the suit properties have been brought for sale through Court auction and in the Court auction one Sankarapandian Pillai has purchased the suit properties and a Sale Certificate has also been issued in his favour and accordingly he has taken possession of the same through Court and therefore by virtue of the Sale Certificate issued in his name, he has become absolute owner of the suit properties and thereafter he sold the same in favour of the wife of the first defendant viz., Muthammal and therefore the said Muthammal has become absolute owner of the suit properties and since the suit properties have already been sold through Court auction, the original owner of the suit properties viz., Narayana Pillai has lost his title and further by way of suppressing the existence of attachment and with the intention of deceiving the first defendant, the said Narayana Pillai has executed the usufructuary mortgage deed dated 17.02.1956 and no possession has been given in pursuance of the same and therefore the plaintiffs are not entitled to get the reliefs sought for in the plaint and the trial Court without considering the factual as well as legal aspects involved in the present case has erroneously decreed the same, but the first appellate court after perpending the available evidence on record has rightly dismissed the same and therefore the Judgment and decree passed by the first appellate court need not be interfered with.

18. At this juncture, it would be more useful to look into as to whether a Sale Certificate issued by a competent Court transfers title?

19. In A.I.R. Commentaries - 10th Edition, it is observed as follows:

"The title of the Court auction purchaser becomes complete on the confirmation of the same under Rule 92(1) of Order 21 of the Code of Civil Procedure, 1908 and under Section 65 of the said Code, the property vests in the purchaser from the date of sale. The certificate of sale does not by itself create title, but it is merely evidence of title. The title which the auction purchaser derives, is not from the Sale Certificate which is issued under Rule 94, Order 21, but from the confirmation of the auction sale by the Court. The Certificate of Sale is not compulsorily registrable under Section 89(2) of the Registration Act and the Court should send a copy of the Sale Certificate to the Registering Officer".

20. From the close reading of the said observation, it is made clear that the Court auction purchaser derives title from the date of confirmation of sale.

21. The entire argument advanced by the learned counsel appearing for the appellants/ plaintiffs is to the effect that the sale proceedings initiated in S.C.No.94 of 1955 as well as the Court auction sale held in favour of Sankarapandian Pillai are nothing, but fictitious.

22. In Nagu Bai Ammal v. Shama Rao reported in A.I.R. 1956 S.C. 593, it is observed by the Hon'ble Apex Court as follows:

"There is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. “Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose”. In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. But when a proceeding is alleged to be fraudulent, what is meant is that the claim made therein is untrue, but that the claimant has managed to obtain the verdict of the court in his favour and against his opponent by practising fraud on the court. Such a proceeding is started with a view to injure the opponent, and there can be no question of its having been initiated as the result of an understanding between the parties. While in collusive proceedings the combat is a mere sham, in a fraudulent suit it is real and earnest".

23. The vital distinction between the collusive proceedings and fraudulent proceedings is that in the former both parties are in collusion, but in the latter one party has tried to defraud the other party.

24. The entire argument advanced by the learned counsel appearing for the appellants/plaintiffs hinges upon the alleged fictitious proceedings made in S.C.No.94 of 1955 in E.P.No.295 of 1955.

25. It is an admitted fact that one Nalayira Kudumban, S/o.Pitchaikkara Kudumban has instituted S.C.No.94 of 1955 against the original owner of the suit properties viz., Narayana Pillai, wherein the properties mentioned therein have been attached. It is also equally an admitted fact that in E.P.No.296 of 1955, the properties mentioned therein have been brought for sale through Court auction. In the Court auction, the aforesaid Sankarapandian Pillai has purchased the properties mentioned in E.P.No.296 of 1955. The Sale Certificate issued in his favour has been marked as Ex.B1 and delivery acknowledgement made in E.A.No.670 of 1955 has been marked as Ex.B.2. In Ex.B.2, it has been clearly mentioned that the possession of the properties mentioned in E.P.No.296 of 1955 has been handed over to the Court auction purchaser viz., Sankarapandian Pillai after vacating the persons, who enjoyed the same. Ex.B.2 has come into existence on 04.10.1956. Therefore it is needless to say that prior to 04.10.1956, the properties, which have been sold through Court auction, are in possession and enjoyment of third parties. Further in Ex.B.1, it has been clearly mentioned that the sale held in favour of the auction purchaser is subjected to the mortgage deeds created in favour of Muthammal and also in favour of Muthusamy Asari.

26. The consistent stand taken on the side of the appellants/plaintiffs is that the original owner of the suit properties viz., Narayana Pillai has indebted heavy debts and only with a view to save his properties including the suit properties, the entire proceedings have been made in S.C.No.94 of 1955 and further the Court auction purchaser viz., Sankarapandian Pillai has purchased the properties mentioned therein in benami for the benefit of Narayana Pillai. Except the averments made in the plaint, no clinching evidence is available with regard to the above factual aspects and further if really the entire proceedings made in S.C.No.94 of 1955 are nothing but fictitious, question of vacating the persons, who are in possession of the properties mentioned in E.P.No.296 of 1955 does not arise. Therefore it is needless to say that the proceedings made in S.C.No.94 of 1955 as well as in E.P.No.295 of 1955 are not at all fictitious as alleged on the side of the plaintiffs.

27. The definite stand taken on the side of the defendants is that Ex.A.1, the suit usufructuary mortgage deed dated 17.02.1956 has been created by the said Narayana Pillai by way of suppressing the entire proceedings taken in S.C.No.94 of 1955 as well as in E.P.No.196 of 1955. Ex.A.1 has come into existence on 17.02.1956. Ex.A.1 is nothing but a usufructuary mortgage deed, wherein it has been specifically recited that the possession of the suit properties has been given to the mortgagee viz., the first defendant. As stated earlier, Ex.B.2 has come into existence on 04.10.1956, wherein it has been clearly stated that possession has been given to the Court auction purchaser viz., Sankarapandian Pillai after vacating the persons, who resided in the properties mentioned therein. Therefore in view of Ex.B.2, it is needless to say that Ex.A.1 is not true and valid. It has already been pointed that even though in the reply statement it has been specifically stated that all the proceedings made in S.C.No.94 of 1955 are fictitious no acceptable and trustworthy evidence is forthcoming on the side of the appellants/plaintiffs and further from the close reading of the entire proceedings made in S.C.No.94 of 1955 and also taking into consideration that delivery of possession has been given to the Court auction purchaser viz., Sankarapandian Pillai by way of vacating the persons, who resided therein under Ex.B.2, it is needless to say that the sale effected in favour of Sankarapandian Pillai through Court is nothing, but a real sale and the same cannot be branded as a benami and he cannot be considered as an ostensible owner. Further it has already been pointed out that from the date of confirmation of sale, title passes in favour of the Court auction purchaser. Therefore viewing from any angle, the contentions urged on the side of the appellants/plaintiffs cannot be accepted. It is an admitted fact that under Ex.B.1, a Sale Certificate has been issued in the name of Sankarapandian Pillai in pursuance of the entire proceedings made in E.P.No.296 of 1955 and further under Ex.B2, he has taken possession of the same. It has already been pointed out that from the date of confirmation of sale, title passes in favour of the Court auction purchaser. At this juncture, it would be more useful to look into Section 54 of the Transfer of Property Act, 1882 and the same reads as follows:

"Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised".

28. Therefore it is easily discernible that a sale is nothing, but a transfer of ownership. In view of Exs.B.1 and B.2 coupled with provision of Section 54 of the Transfer of Property Act, 1882, the Court can give a formidable conclusion to the effect that the Court auction purchaser viz., Sankarapandian Pillai has become the absolute owner of the properties mentioned in E.P.No.296 of 1955.

29. Now the Court has to look into the nature of rights claimed on the side of the defendants. In the written statement filed on the side of the defendants, in paragraph No.6, it is averred that the Court auction purchaser viz., Sankarapandian Pillai has sold the suit properties in favour of Muthammal, wife of the first defendant and put her in possession of the same and since then she is enjoying the same by way of paying kist, etc. Except the bald averments made in the written statement, no document has been filed on the side of the defendants so as to encrust the sale alleged to have been effected in favour of the said Muthammal by the Court auction purchaser. Therefore the right claimed on the side of the defendants has no legs to stand.

30. The learned counsel appearing for the appellants/plaintiffs has relied upon the following decisions:

(a) In Raghunath Singh and others v. Mt.Hansraj Kunwar and others reported in A.I.R. 1934 Privy Council 205, it is held that right of redemption is extinguished only by means and in manner provided in Section 60 of the Transfer of Property Act, 1882.

(b) In Nagammal v. Valliammal reported in 2007(3) CTC 633, this Court has held that right of redemption cannot be extinguished except by "Act of Parties or by Decree of Court" under Section 60 of the Transfer of Property Act, 1882. For better appreciation, the facts which are available in the decision rendered by this Court are very much essential. One father and his son have executed a mortgage deed in favour of one 'b' and one of the mortgagors viz., 'd' orally sold right of equity of redemption viz., 's'. The mortgagee 'b' claimed that 'c' purchased right of equity of redemption from 's'. The mortgagee 'b' claimed 'c' purchased right of equity of redemption from 's' and hence right of redemption of successor of mortgage has become extinguished. On the factual circumstances, this Court has come to a conclusion that the said 's' cannot question right of equity of redemption, since he is not a party to mortgage.

(c) In Thota China Subba Rao and others v. Mattapalli Raju and others reported in A.I.R.(37) 1950 Federal Court I, it is held that the right of redemption can be extinguished as provided under Section 60 of the Transfer of Property act, 1882 and when it is alleged to have been extinguished by a decree.

(i) From the conjoint reading of the said decisions, it is made clear that right of redemptions can be extinguished either by act of parties or by decree of Court. Except the circumstances mentioned supra, right of redemption cannot be extinguished. In the instant case, as noted down earlier, the entire proceedings taken in S.C.No.94 of 1955 and in E.P.No.296 of 1955 are not fictitious and the Court auction purchaser viz., Sankarapandian Pillai has really purchased the properties mentioned therein and therefore the original owner of the suit properties viz., Narayana Pillai has lost his title, after Court auction sale and therefore the facts available in the present case are totally alien to the facts of the decision referred to supra and the same cannot be attuned in the present case.

(d) In M.R.Satwaji Rao (dead) by LRs. v. B.Shama Rao (dead) by LRs. and others reported in (2008)5 Supreme Court Cases 124, the Hon'ble Apex Court has held that Order 34, Rule 14 of the Code of Civil Procedure, 1908 prohibits the mortgagee to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage.

(i) Here also, the factual aspects of the decision mentioned supra are very much essential. The plaintiff's predecessor has executed a usufructuary mortgage in favour of the second defendant for a sum of Rs.10,000/-. The period of redemption in relation to the said mortgage is five years from the date of mortgage. However the mortgagors continued in possession of the mortgage property as tenants of mortgagee on a monthly rent of Rs.97.50. As the mortgagors failed to pay the rent, a civil suit i.e., O.S.No.120/51-52 has been filed by the mortgagee for recovery of arrears of rent. The said suit was decreed. In pursuance of the said decree, the mortgagee (the second defendant) filed an execution petition and the suit property has been put into auction sale by the executing Court. The mortgagee being the highest bidder purchased the said property in Court auction on 11.09.1952. The said sale has been confirmed. The respondent mortgagors have not raised any objection against the sale and not taken any steps to set aside the sale for over three decades and subsequently the present suit has been instituted for a decree of redemption of mortgage. Under the said circumstances, the Hon'ble Apex Court has held that in view of Order 34, Rule 14 of the Code of Civil Procedure, 1908, a mortgagee cannot bring the mortgage property for sale otherwise than by instituting a suit for sale in enforcement of mortgage.

(ii) For better appreciation and also for easy reference, provisions of Order 34 Rule 14 has to be narrated at this stage and the same reads as follows:

"Suit for sale necessary for bringing mortgaged property to sale. - (1) Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, ...".

(iii) The subtle distinction made in the said rule is that a mortgagee can institute a suit for sale of mortgage property only in connection with enforcement of mortgage and not in connection with satisfaction of the claim arising under mortgage.

(iv) In the instant case, such contingencies have not arisen and therefore it is needless to say that the dictum rendered by the Hon'ble Apex Court in view of prohibition mentioned under Order 34, Rule 14 of the Code of Civil Procedure, 1908 is not applicable to the factual situation of the present case.

(e) In Panchanan Sharma v. Basudeo Prasad Jaganani and others reported in 1995 Supp(2) Supreme Court Cases 574, the Hon'ble Apex Court has held as follows:

"Auction purchaser enjoined to pay the land revenue. Possession of the purchaser must be on behalf of the mortgagee and becomes liable to accounting. On redemption, Court may give directions for recovery of the amount paid by the auction-purchaser from the defaulting mortgagee".

(i) In the decision referred to supra, a mortgage has been created, wherein it has been directed the mortgagee to pay land revenue. But he has not paid the same and subsequently the mortgage property has been brought to sale for recovery of land revenue. A third party has purchased. Under the said circumstances, the Hon'ble Apex Court has held that mortgagee can be directed to pay the amount paid by the auction purchaser at the stage of redemption. The facts mentioned in the decision referred to supra are not at all applicable to the facts of the present case.

(f) In Thondam Annamalai Mudali v. Tiruttani Ramasami Mudali and others reported in A.I.R. 1941 Madras 161 (Full Bench), it is held that Section 64 of the Code of Civil Procedure, 1908 does not render an alienation pending attachment is void against all persons and for all the purposes, but only against a "claim enforceable under the attachment." i.e., against the decree-holder's right to bring the property to sale under his attachment unaffected by any alienation by the judgment-debtor subsequent to such attachment. Here also, the court has to look into Section 64 of the Code of Civil Procedure, 1908 and the same reads as follows:

"Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment".

(i) A cursory look of the said provision made clear that Section 64 of the said Code does not render an alienation pending attachment is void against all persons and all purposes, but only against a "claim enforceable under the attachment". In the instant case such situation has not arisen and therefore the decision referred to supra is not at all applicable to the facts of the present case.

(g) In Namdev Shripati Nale v. Bapu Ganapati Jagtap & Anr. reported in JT 1997 (3) S.C. 562, the Hon'ble Apex Court has held as follows:

"So, on facts, it is clear that the first respondent obtained regrant in his favour or obtained an advantage in his favour, by availing himself of his position as a mortgagee. In law, the advantage obtained by the first respondent, the qualified owner, must be held to be for the benefit of the persons interested — the mortgagor-appellant. We are of the view that in the totality of the facts and circumstances, the provisions of Section 90 of the Indian Trusts Act are attracted. The first respondent-mortgagee gained an advantage by availing himself of his position as a possessory mortgagee and obtained the regrant. This he did by committing a wrong. He committed a default in not paying the occupancy price within the time limited by law for and on behalf of the mortgagor. The regrant was obtained in his name by posing himself as a tenant, which was possible only because he was in possession of the land (as a possessory mortgagee). The advantage so gained by him in derogation of the right of the mortgagor should attract the penal consequences of Section 90 of the Indian Trusts Act. We hold that the default committed by a possessory mortgagee, in the performance of a statutory obligation or a contractual obligation, which entails a sale or forfeiture of right in the property to the mortgagor, will attract the provisions of Section 90 of the Indian Trusts Act. In such cases any benefit obtained by the qualified owner, the mortgagee, will enure to or for the benefit of the mortgagor. The right to redeem will subsist notwithstanding any sale or forfeiture of the right of the mortgagor. We are of the view that the law on this point has been laid down with admirable clarity by this Court in Mritunjoy Pani v. Narmanda Bala Sasmal and anr. (1962(1) SCR 290) and by K.K. Mathew, J. (as his Lordship then was) in Nabia Yathu Ummal v. Mohd. Mytheen & Ors. (1963 KLJ 1177). The said decisions have our respectful concurrence."

From the close reading of the decision referred to earlier, it is made clear that right to redeem will subsist notwithstanding of any sale or forfeiture of the right of the mortgagor. In the instant case, it has already been pointed out that Ex.A.1 itself is not a true and valid document and therefore question of redemption does not arise in view of the legal proceedings initiated in S.C.No.94 of 1955 and E.P.No.296 of 1955. Under the said circumstances, the decision referred to supra cannot be applied in the present case.

(h) In Smt. Rehmani v. Bhoorji & Ors. reported in AIR 2010 Punjab and Haryana 151, it has been held that if a suit has been dismissed under Order 17, Rule 3 of the Code of Civil Procedure, 1908, subsequent suit for redemption is not barred.

(i) Order 17, Rule 3 of the Code of Civil Procedure, 1908 reads as follows:

"Court may proceed notwithstanding either party fails to produce evidence, etc. - Where any party to suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default,-

(a) if the parties are present, proceed to decide the suit forthwith; or

(b) if the parties are, or any of them is, absent, proceed under Rule 2".

As per the said provision, ample power has been given to the Court to proceed with a case when a party has failed to produce his evidence or fails to cause his attendance and further if a suit has been dismissed on the basis of the said provision, subsequent suit for redemption is not barred in view of the decision referred to supra. But here the position is inverse and such contingency has not at all arisen and therefore the decision referred to supra cannot be applied in the present case.

31. It has already been pointed out that even though it has been specifically averred in the written statement filed on the side of the defendants that the Court auction purchaser viz., Sankarapandian Pillai has sold the suit properties in favour of the wife of the first defendant viz., Muthammal no document of title has been filed and therefore the claim of the defendants made in respect of the suit properties cannot be entertained and further it has already been pointed out that in pursuance of Exs.B.1 and B.2 coupled with Section 54 of the Transfer of Property Act, 1882, the Court auction purchaser viz., Sankarapandian Pillai has derived valid title to the properties mentioned in S.C.No.94 of 1955.

32. Now the Court has to look into the substantial questions of law settled in the present second appeal.

33. The first and foremost substantial question of law is as to whether the respondents can legally resist the present suit for redemption since they have not produced title deed alleged to have been obtained from the Court auction purchaser and further the Court auction purchaser attested Ex.A.1?

34. In several places, it has been pointed out that even though a specific stand has been taken on the side of the defendants that the Court auction purchaser has executed a sale deed in favour of the wife of the first defendant viz., Muthammal, no title deed has been forthcoming on their side and therefore they are not entitled to lay any claim over the suit properties.

35. The learned counsel appearing for the appellants/plaintiffs has also advanced his residual argument stating that in Ex.A.1, the Court auction purchaser has put his signature as an attestor and therefore he cannot claim any legal title over the properties mentioned in E.P.No.296 of 1955. Admittedly, Ex.A.1 has come into existence on 17.02.1956 and the sale has been conducted through Court in S.C.No.94 of 1955 in E.P.No.296 of 1955 on 20.04.1956 and the same has been confirmed on 13.06.1956 and the Sale Certificate has been issued on 25.06.1956. It has already been pointed that from the date of confirmation of sale, a Court auction purchaser has derived a valid title. Therefore, only on 13.06.1956, the said Sankarapandian Pillai has derived valid title to the properties mentioned in E.P.No.296 of 1955. Ex.A.1 has come into existence on 17.02.1956. Since Ex.A.1 has come into existence prior to 13.06.1956, the date of confirmation of sale, mere attestation in Ex.A.1 by the said Sankarapandian Pillai does not preclude anything and further it is an everlasting principle of law that mere attestation of a document cannot be deemed to have knowledge of the contents of the same. Under the said circumstances, this Court is of the view that since the defendants have not filed any document of title alleged to have been executed by the Court auction purchaser in favour of the wife of the first defendant viz., Muthammal, the defendants are not having any manner of right, title and interest over the suit properties and further mere attestation in Ex.A.1 by the Court auction purchaser does not preclude him from claiming anything and therefore the first substantial question of law is answered accordingly.

36. The second substantial question of law is as to whether the first appellate Court is correct in holding that non-production of sale deed under which the respondents claim is justified on the ground that the sale deed is not registered?

37. It has already been pointed out that the sale deed alleged to have been executed by the Court auction purchaser viz., Sankarapandian Pillai in favour of the wife of the first defendant has not at all been marked. Under the said circumstances, the finding given by the first appellate Court to the effect that the defendants are having right over the suit properties is erroneous and accordingly the second substantial question of law is answered.

38. The present suit has been instituted for the reliefs of redemption of mortgage and also for recovery of possession. The main contention of the plaintiffs is that the father of the plaintiffs viz., Narayana Pillai has executed Ex.A.1 in favour of the first defendant. Ex.A.1 is nothing, but a usufructuary mortgage deed. It has already been discussed in various places that Ex.A.1 is not a true and a valid document. Further in pursuance of the legal proceedings initiated in S.C.No.94 of 1955 in E.P.No.296 of 1955, the Court auction purchaser viz., Sankarapandian Pillai has derived valid title to the properties mentioned therein and further the alleged fictitious transaction putforth on the side of the plaintiffs has also been decided in extenso and ultimately found that all the proceedings made in S.C.No.94 of 1955 are legally valid. Under the said circumstances, this court is of the considered view that the plaintiffs are not having locus standi to institute the present suit.

39. At this juncture, it would be apposite to look into the archaic and also pristine Latin Maxim 'ubi jus ibi remedium'. It means when there is a legal right, a legal remedy is available. In the instant case, even at the risk of repetition, the Court would like to point out that after Exs.B.1 and B.2 coupled with Section 54 of the Transfer of Property Act, 1882, the original owner of the suit properties viz., Narayana Pillai has lost his title and interest over the suit properties and after his demise, the plaintiffs are also not having any right over the same. Under the said circumstances, by way of applying the said Latin Maxim, it is needless to say that the reliefs sought for in the plaint cannot be granted in favour of the appellants/plaintiffs.

40. The trial Court without considering the factual as well as legal aspects involved in the present case has erroneously decreed the suit. But the first appellate Court has rightly given a finding to the effect that the Court auction sale held in S.C.No.94 of 1955 in E.P.No.296 of 1955 is legally valid. Under the said circumstances, the Judgment and decree passed by the first appellate court are perfectly correct and the same do not warrant interference. In view of the foregoing enunciation of both the legal as well as factual aspects, it is needless to say that the present second appeal deserves to be dismissed.

41. In fine, this second appeal deserves dismissal and accordingly is dismissed with costs and the Judgment and decree passed in Appeal Suit No.87 of 1986 by the Sub Court, Tenkasi are confirmed.