# MANGRU MAHTO & ORS v. SHRI THAKUR TARAKNATRJI TARAKESHWAR MATH & ORS

- **Citation:** [1967] 3 S.C.R. 125
- **Court:** Supreme Court of India
- **Decided:** 1967-03-08
- **Bench:** K. N. Wanchoo, R. S. Bachawat, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mangru-mahto-ors-v-shri-thakur-taraknatrji-tarakeshwar-math-ors-4188
- **Pages:** 9

## Headnote

Code of Civil Procedure (Act 5 of 1908), 0.XXI, rr. 58 and 630rder on claim petition against decree·holder-No suit filed for
setting
aside order-Res judicata, to what extent.
Mortgage--Suit by n1ortgagee-Lessees of morigaged
property !JOI
parties-Property sold in
execution
of
n1ortgage
decree-Effect on
le'isees' right of redemption.
The owner of certain properties over which K had a mortgage granted leases to certain persons.
The lands were sold in execution of the
mortgage decree of K, and were. purchased by K at the auction
The
lessees allowed the property to be sold and did not apply for being
joined as parties.
K obtained a money decree
against
one
of
the
lessees and in execution attached the lands.
The lesse"" filed claim petitions objecting to the attachment ooder 0.21 r. 28 C.P.C. The claim
petitions were allowed and the executing court found that the leases were
genuine.
K did not file any suit under 0.21 r. 63 C.P.C. But later, K
filed a suit against the mortgagor and the lessees for recovery of p<JMCSsion of the lands alleging that the leases were collusive transactions and
were otherwise not binding on him. The trial court dismissed the suit
holding that leases were genuine, but the High Court decreed the suit
holding that the leases were sham transactions and made in contravention
of s. 65A of tile Transfer of Property Act. In appeal to this Court, the
appellants contended that (i) as K did not file any suit under Order 21
r. 63 C.P.C. the adverse Orders passed against him in the proceedings
under 0.21 r. 58 C.P.C. operated as res judicata and he was precluded
from
alleging that the leases were not binding on him; and
(ii) the
leases granted by the mortgagor were binding on K.
HELD : In view of the orders passed against K in the claim proceedings and his failure to institute suits under 0.21, r. 63 C.P.C., K
was precluded from claiming that he had the right to attach the suit
lands in execution of his money decree, but he was· not precluded from
claiming that he had the right to sell the lands
in execution
of his
mortgage decree. [128 E]
~ claim proceeding under 0.21 r. 58 C.P.C. is not a suit or a proceeding analogous to a suit. An order in the claim proceeding does not
operate as res judicata. It is because of 0.21 r. 63 that the order becomes conclusive. The effect of r. 63 is that unless a suit is brought
as provided by the rule, the party against whom the order in the claim
proceeding is made or any person claiming
through
him cannot reagitate in any other suit or proceeding against
the other party or any
person cbiming through him the question whether the property was or
was no• liable to attachment and sale in execution of the decree out of
which the claim Proceeding arose, but the bar of rule 63 extends
no
further.
[129 A-Cl
Kandadai Naras;mhachariar v. Raghava Padayachi & Ors. I.L.R. 1946
!\fad. 79; approved.
126
SUP.IUIMB COURT RBPOB.TS
[1967] 3 S.C.R
Subbier v. Moideen Pltchai, A.I.R. 1923 Mad. 562, and Sar/u Prasad
A
Mlssir and Ors. v, Maktudan Chaudhuri & Ors, A.I.R. 1922 P.C. 341;
referred to.
(ii) The validity of the leases granted by the
mortgagor was not
affected by s. 65A of the Transfer of Property Act as the leases were
granted before the enactment of s. 65A. [131 A-Bl
The leases were not in the ordinary course of management of the
B
mortgagor as the agent or bailiff of the mortgagee and were not binding
of the mortgagee. [132 A-BJ
A lease granted by the mortgagor,. out of the
ordinary course of
management, though not binding on the martgagee,
is binding
as be·
tween the mortgagor and the lessee.
Such a lessee acquires an interest
in the right of redemption and is entitled to redeem. If such a lease is
created before the institution of a suit
relating to the mortgage,
the
C
lessee must be joined as a party to the suit under 0.34, r. I, C.P.C.;
otherwise he will not be bound by the decree passed in the suit and will
continue to retain his right of redemption. But in view of s. 52 of the
Transfer

## Text

A
B
c
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F
G
H
MANGRU MAHTO & ORS.
v.
SHRI THAKUR TARAKNATRJI TARAKESHWAR MATH &
ORS.
March 8, 1967
[K. N. WANCHOO, R. S. BACHAWAT AND V. RAMASWAMI, JJ.j
Code of Civil Procedure (Act 5 of 1908), 0.XXI, rr. 58 and 630rder on claim petition against decree·holder-No suit filed for
setting
aside order-Res judicata, to what extent.
Mortgage--Suit by n1ortgagee-Lessees of morigaged
property !JOI
parties-Property sold in
execution
of
n1ortgage
decree-Effect on
le'isees' right of redemption.
The owner of certain properties over which K had a mortgage granted leases to certain persons.
The lands were sold in execution of the
mortgage decree of K, and were. purchased by K at the auction
The
lessees allowed the property to be sold and did not apply for being
joined as parties.
K obtained a money decree
against
one
of
the
lessees and in execution attached the lands.
The lesse"" filed claim petitions objecting to the attachment ooder 0.21 r. 28 C.P.C. The claim
petitions were allowed and the executing court found that the leases were
genuine.
K did not file any suit under 0.21 r. 63 C.P.C. But later, K
filed a suit against the mortgagor and the lessees for recovery of p<JMCSsion of the lands alleging that the leases were collusive transactions and
were otherwise not binding on him. The trial court dismissed the suit
holding that leases were genuine, but the High Court decreed the suit
holding that the leases were sham transactions and made in contravention
of s. 65A of tile Transfer of Property Act. In appeal to this Court, the
appellants contended that (i) as K did not file any suit under Order 21
r. 63 C.P.C. the adverse Orders passed against him in the proceedings
under 0.21 r. 58 C.P.C. operated as res judicata and he was precluded
from
alleging that the leases were not binding on him; and
(ii) the
leases granted by the mortgagor were binding on K.
HELD : In view of the orders passed against K in the claim proceedings and his failure to institute suits under 0.21, r. 63 C.P.C., K
was precluded from claiming that he had the right to attach the suit
lands in execution of his money decree, but he was· not precluded from
claiming that he had the right to sell the lands
in execution
of his
mortgage decree. [128 E]
~ claim proceeding under 0.21 r. 58 C.P.C. is not a suit or a proceeding analogous to a suit. An order in the claim proceeding does not
operate as res judicata. It is because of 0.21 r. 63 that the order becomes conclusive. The effect of r. 63 is that unless a suit is brought
as provided by the rule, the party against whom the order in the claim
proceeding is made or any person claiming
through
him cannot reagitate in any other suit or proceeding against
the other party or any
person cbiming through him the question whether the property was or
was no• liable to attachment and sale in execution of the decree out of
which the claim Proceeding arose, but the bar of rule 63 extends
no
further.
[129 A-Cl
Kandadai Naras;mhachariar v. Raghava Padayachi & Ors. I.L.R. 1946
!\fad. 79; approved.
126
SUP.IUIMB COURT RBPOB.TS
[1967] 3 S.C.R
Subbier v. Moideen Pltchai, A.I.R. 1923 Mad. 562, and Sar/u Prasad
A
Mlssir and Ors. v, Maktudan Chaudhuri & Ors, A.I.R. 1922 P.C. 341;
referred to.
(ii) The validity of the leases granted by the
mortgagor was not
affected by s. 65A of the Transfer of Property Act as the leases were
granted before the enactment of s. 65A. [131 A-Bl
The leases were not in the ordinary course of management of the
B
mortgagor as the agent or bailiff of the mortgagee and were not binding
of the mortgagee. [132 A-BJ
A lease granted by the mortgagor,. out of the
ordinary course of
management, though not binding on the martgagee,
is binding
as be·
tween the mortgagor and the lessee.
Such a lessee acquires an interest
in the right of redemption and is entitled to redeem. If such a lease is
created before the institution of a suit
relating to the mortgage,
the
C
lessee must be joined as a party to the suit under 0.34, r. I, C.P.C.;
otherwise he will not be bound by the decree passed in the suit and will
continue to retain his right of redemption. But in view of s. 52 of the
Transfer of Property Act, if the mortgagor grants such a lease during
the pendency of a suit for sale by the mortgagee, the lessee is bound by
the result of the litigation. If the property is sold in execution of the
decree passed in the suit, the lessee cannot resist a claim for possession
by the auction-purchaser. The lessee could apply for being joined as a
D
party to the suit and ask for an opportunity to redeem
the property.
But if he allows the property <to be sold in execution of the decree,. he
loses his- right of redemption.
In the present case, the lessees allowed
the suit lands to be sold in execution of the mortgage decree and they
have now lost the right of redemption. They cannot resist the claim of
the auction-purchaser for recovery of possession of the lands. [132 D-0]
·Raja Kamakshya Narayan Singh Bahadur v. Chohan
Ram and Anr.
E
[1953 J S.C.R. 108; followed.
Madan Mohan Singh v. Raj Kishori Kumari, 21 C.W.N. 88, 92;
Gobinda Chandra Saha & Ors. v. Sasadhar Manda/, A.I.R. 1947 Cal. 73,
75 and Rust v. Goodale, [1957] 1 Ch. 33, 42 and 43; referred to.
CML APPELLATE JURISDICTION : Civil Appeals Nos. 988
and 989 of 1964.
F
Appeals from the judgment and decree dated February 16,
1961 of the Patna High Court in Appeal from Original Decree
No. 390 of 1953.
D. Goburdhun, for the appellants (in C.A. No. 899 of 1964).
S. C. Agarwal and R. K. Garg, for the appellants (in C.A.
G
No. 989 of 1964).
D. N. Mukher;ee and S. Musta{i, for respondent No. 1 (in
both the appeals).
The Judgment of the Court was delivered by
Bachawat, J. One Harbans Narain Singh was the proprietor
of villages Seha and Dhobaha and other villages. He created
several incumbrances over these villages including a mortgage
H
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MANGllU v. TAllAKESHWAll MATH (Bachawat, J.)
127
dated February 10, 1886 in favour of Basanti Bibi, two mortgages
dated September 9, 1907 and February 5, 1910, in favour of
Harprasad Das and a mortgage dated August 2, 1911 in favour
of defendant No. 1 Ramanandan Lal. On June 23, 1915,
Harbans Narain sold the villages to Mahabir Missir subject to the
above mortgages. Mahabir Missir redeemed the mortgages in
favour of Basanti Bibi and Harprasad Das and became subrogated
to their rights. Ramanandan Lal instituted a suit to enforce
his mortgage, obtained a final decree for sale, put the decree into
execution, at the execution sale purchased villages Seba and
Dhobaha and obtained possession of the villages in 1919 and
1920. In 1924, Mahabir instituted suit No. 17 of 1924 to enforce his mortgage lien prayin2 for rateable contribution of his
dues in respect of villages Scha and Dhobaha from Ramanandan
Lal and obtained a final decree on August 22, 1931. Mahabir
died leaving his son Kashinath as his legal representative.
Kashinath put the decree in suit No. 17 of 1924 into execution.
On July 13, 1934, Ramanandan Lal paid the decretal dues in respect of village Seba. On November 4, 1935, village Dhobaha
D was sold in execution of the decree in suit No. 17 of 1924 and
was purchased by Kashinath. In June, 1934, Ramanandan Lal
through his constituted attorney, Munshi Sheobaran Lal granted
five leases in respect of the suit lands in the village to defendants
2 to 7. At the time when the leases were created, Ramanandan
Lal was the mortgagor in possession of the suit lands over which
a:
Kashinath had a mortgage lien. One of the questions in issue in
these appeals is whether the leases were binding on Kashinath.
F
G
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It appears that Kashinath obtained a money decree against
Ramatahal Pandey, husband of defendant No. 3 and in execution
of the money decree attached the suit lands. Defendants 2 to 7
filed claim petitions objecting to the attachment under 0.21, r.
58, CPC. The claim petitions were allowed and the lands were
released from attachment by orders of the executing court dated
November 20, 1942 and February 26, 1944. The executing
coun found that the leases were genuine. Kashinath did not file
any suit under 0.21, r. 63, CPC. One of the questions in these
appeals is whether the orders passed in the claim proceedings
!1nder 0.21, r. 5~ precluded Kashinath from setting up his claim
m the preselilt swt.
On J.une 11, 1946, Kashinath instituted the suit out of which
these appeals arise against Ramanandan Lai and the lessees for
recovecyi of possession of the suit lands and mesne prafits alleging
that the leases were collusive transactions and were otherwise not
binding on him. The defendants contested the suit. In the meantime, in other proceedings, it was declared that Mahabir was a
benamidar for Shri Thakur Taraknathji and the deity was the real
owner of the villages. In view of this adjudication, Kashinath lost
128
SUPIU!MB COU1T JlBPOJ.TS
(1967) 3 S.c.R.
all interest in the present suit. By order dated Aug\ISt 25, 1952, the
A
deity was added as a coplaintilf in the suit.-
The subordinate Judge, Arrah, held that the leases were
genuine, were granted by Ramanandan Lal in due course of
management and were binding on the plaintilfs. On this finding,
he dismissed the suit. The deity preferred an appeal to the High
B
Court of Patna. The High Court allowed the appeal and decreed
the suit. It held that the leases were sham transactions were made
in contravention of s. 65A of the Transfer of Property Act and
were not binding upon the plaintiffs. Before the High Court, it
was contended on behalf of the defendants that the plaintiffs were
precluded from challenging the leases in view of the orders passed c
against Kashinath in the proceedings under 0. 21, r. 58, CPC,
but the High Court rejected this contention. Defendants Nos. 2,
6 and 7 and the widow of defendant No. 5 have filed C. A.
No. 988 of 1964 and defendants 1 and 4 have filed C. A. No. 989
of 1964 under certificates granted by the High Court.
The appellants contend that as Kashinath did not file any suit
under 0. 21, r. 63, CPC, the adverse orders passed against him
in the proceedings under 0. 21, r. 58, CPC operated as res
judicata, and he and the deity who now stands in his shoes, were
precluded from alleging that the leases were not binding on them.
We think that this contention should be rejected. In view of the
orders passed against Kashinath in the claim proceedings and his
failure to institute suits under 0. 21, r. 63, CPC, Kashinath was
precluded from claiming that he had the right to attach the svit
lands in execution of his money decree, but he was not precluded
from claiming that he had the right to sell the lands in execution
of his mortgage decree. Rules 58 to 62 of Order 21, CPC, provide for a summary investigation of the claims and ob.iections to
the attachment of any property attached in execution of a decree.
The issue in the proceeding is whether "such property is liable to
such attachment". If the claim is allowed, the property is released
from attachment (r. 60). If the claim is disallowed, the attachment continues (r. 61). If the property is subject to mortgage
or charge in favour of some person not in possession, the attachment may be continued subject to such mortgage or charge (r.
62). The party against whom an order is made in the claim
proceeding may institute a suit to establish the right which he
claims to the property in dispute, but subject to the result of such
suit. if anv. the order is conclusive ( r. 63). Tf no suit is brou.eht
under r. 63 within the prescribed period of limitation, the O'der
in the claim proceeding is conclusive on the question whether ~he
property was or was not liable to attachm~nt and sale in. executton
of the particular decree. But the order 1s not conclusive for al~
purposes, see Kandadai Narasimhachariar v. Raghava Padayachr
D
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MANGRU v. TARAKESHWAR MATH (Bachawat, J.)
12~
and others('). A claim proceeding under r. 58 is not a suit or
a proceeding analogous to a suit. An order in the claim proceeding does not operate as res judicata.
It is because of rule 63
that the order becomes conclusive. The effect of r. 63 is that
unless a suit is brought as provided by the rule, the party against
whom the order in the claim proceeding is made or any person
claiming through him cannot re-agitate in any other suit or proceeding against the other· party or any person claiming through
him the question whether the property was or was not liable to
attachment and sale in execution of the decree out of which the
claim procee<ling arose, but the bar of rule 63 eXtends no further
In support of the contention that the orders in the claim
proceedings operated as res judicata, counsel for the appellant
relied on several decisions. In Subbier v. Moideen Pitchai('),
the decree-holder in execution of a money decree attached a debt
alleged to be due to the judgment-debtor. The garnishee objected
to the attachment on the ground that the debt was not due to
the judgment-debtor, it had been assigned and he had promised
to pay to the assignee and the amount of the debt was Rs. 300
and not Rs. 350. The objection was disallowed. The attached
debt was sold in execution of the decree and was purchased by the
decree-holder. The decree-holder purchaser then sued to recover
the debt. As the garnishee did not file a suit under 0. 21, r. 63.
the order passed against him in the claim proceeding became
conclusive, and he was precluded from re-agitating his objection~
in the suit. In the course of his judgment, Schwabe, CJ. referred
to s. 11 of the Code of Civil Procedure and his observations l!;ive
some support to the contention of the appellants in the pre5ent
case that the order in the proceeding under r. 58 operates as rel!
j11dicata.
But we cannot agree with those observations. The
order in the summary proceeding under r. 58 does not operate
as res jrulicata. The reason why the garnishee could not reagitate his objections was that in view of r. 63 he was nrecluded
from asserting that the decree-holder was entitled to attach and
sell the Particular debt on the footing that it was due to the judgment-debtor. In Sarju Prasad Missir and others v. Maksudan
Choudhuri and others('), O"e Lalji Lal obtained a decree for sale
of the property mortgaged to him. In execution of the decre~.
Lalii Lal attacher! !he property, One Kamal Narain Choudhry
filed a petition objecting to the attachment. By an order dated
September 14, 1886 passed under s. 278, CPC of I 882. corresponding to 0. 21. r. 58 CPC of 190~. th~ executing court directed
that the property should not be sold under the decree obtained bv
Lalji Lal. Sarju Prasad, an assignee of the decree executed the
decree, at the execution sale purchased the property and suhsern 1.L.R. 1946 Mod. 7'1.
r2) A.l.R. 1923 Mad. S62.
"1 A.l.R. 1922 P.C. 341.
130
SUPIU!MB COURT llBPOJlTS
(1967] 3 S.C.ll.
quently instituted a suit against the heir of Kamal Narain for
recovery of possession of the property. The Privy Council held
that the order dated September 14, 1886 became final and binding upon Lalji Lal and all persons claiming title Under him. Sir
John Edge observed :-
"The petition of objection was a petition which the
Subordinate Judge had to consider and dispose of and
any party to that proceeding who was dissatisfied with
the order which the Subordinate Judge might make
could have appealed from it. Lalji Lal was a party to
that proceeding and he did not appeal, and the order
became final and binding upon Lalji Lal and upon
those who claim title under him."
The observation that the party dissatisfied with the order made
under s. 278 of the Code of Civil Procedure, 1882, could have
appealed from the order, seems to have been made per incuriam.
It seems that no appeal Jay from such an order. The reason why
Lalji Lal was precluded from contending that the property was
liable to be attached and sold in execution of the decree .obtained
by him was that in the absence of a suit under s. 283 of CPC
A
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of 1882, he and Sarju Prasad claiming title under him, could not
subsequently contend that the property was liable to be sold in
execution of the decree. In the two cases discussed above, the
adverse orders in the claim proceeding became· conclusive on the
question whether the property was liable to attachment and sale
E
in execution of the particular decree then sought to be executed.
Equally, .in the absence of any suit under 0. 21, r. 63, CPC, the
adverse orders passed against Kashinath conclusively decided that
the suit lands wero not liable to be sold in execution of the money
decree obtained by him against Ramtahal Pandey.
But those
orders were not conclusive on the question whether the lands
were liable to be sold in execution of the mortgage decree obtained by Kashinath ·against Ramanandan Lal.
F
On the merits, the question is whether the leases granted by
Ramanandan Lal, while he was the mortgagor, in possession of
the suit lands were binding on the mortgagee Kashinath. The
. High Court held that the leases were in contravention of s. 65A
G
of the Transfer of Property Act, 1882. Section 65A was inserted
in the Transfer of Property Act, 18 82 by s. 30 of the Transfer
<>f Property (Amendment) Act, 1929, which came into force on
April 1, 1930 Section 63 of the Transfer of Property (Amendment) Act 1929 provided that nothing in the provisions of s. 30
of the amending Act would be deemed if any to affect the "terms
H
<Jr incidents of anv transfer of nropertv made or effected before
the Ist day of April, 1930". Now Kashinath was entitled to the
rights of the mortgagees under the mortgages dated February 10,
A
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MANGRU v. TARAKESHWAR MATH (Bachawat, J.)
131
1886, September 9, 1907, February 5, 1910. All these mortgages were executed before April 1, 1930 and nothing in s. 65A
affected their inciaents. The power of the lessor to make leases
binding on the mort2a~ee• wa• an incident of the mortgages and
was not affected by s. 65A. The validity of the leases granted by
the mortgagor in June 1934 must be determined with reference to
the law as it stood before the enactment of s. 65A.
In Madan Mohan Singh v. Ra; Kishori Kumari(') Mookerjee,
J, held that a mortgagor iii possession may grant a lease confonnable to usage in the ordinary course of management, for instance
he may create a tenancy from year to year in the case of agricultural lands or from month to month in the case of house~. But
he is not competent to grant a lease on unusual terms or to alter
the character of the land or to authorise its use in a manner or
for a purpose different from the mode in which he himself had
used before he granted the mortgage. This view of the law as
it stood before the enactment of s. 65A was approved in Raia
Kamaksh,va Narayan Singh Bahadur v. Chohan Ram and
Another(') and this court held that the question whether the mortgagor in possession has power to lease the mortgaged property
must be determined with reference to the authority of the mort -
gagor as the bailiff or agent for the mortgagee to deal with the
property in the usual course of management. In Gobi11da Chandra
Saha and others v. Sasadhar Manda!("), B. K. Mukherjea, .)1.,
pointed out that normally a permanent lease with rent fixed in
perpetuitv is not sanctioned by the ordinary course of management. He observed :-
"The mortgagor might be within his rights to create
a lease which is from month to month or from vear to
year as the c.ase might be, but he cannot grant a permanent lease with a rent fixed in perpetuity. This amounts
to an alienation of his right to increase the rent in
fu~r~ and is as good as the sale of the property itself.
This is not sanctioned by the ordinary course of
management as has been mentioned above nor is it
warranted by the previous
user of this
particular
property."
In the present case, defendants 2-7 were lessees under five
leases ~anted by the mortgagor in June 1934. All these defendants claimed to be ve"!Danent lessees with rent fixed in perpetuity.
Four of the leases were granted by registered pattas. Jn respect
of four leases the mortgagor received nazrana or premium
All
!]ie leasei: were created after the property was advertised f~r sale
in execu!Ion of the mortgage decree. The High Court has found
(I) 21C.W.N.88, 92:--~
(2) [1953J S.C.R.tr8, 118.
13) A.l.R. 1947 Cal. 73, n.
132
SUPllEMB COU!lT llEPO!lTS
[1967] 3 s.c.R.
that the leases were created by the mortgagor in bad faith with
a view to cause loss to the mortgagee-decree-holder. The leases
were not in the ordinary course of management of the mortgagor
as the agent or baillif of the mortgagee, and were not binding on
the mortgagee.
On behalf of the appellants it was argued that the leases might
not be binding on Kashinath while he was the mortgagee, but
after he purchased the property he ceased to be a 1Uortgagee, and
he could not thereafter assert that the leases were not binding on
him. This novel argument is ingenious but unsound.
An auction-purchaser at a sale held in execution of a mortgage decree
buys not only the interest of the mortgagor but also the interest
of the mortgagee. If the lease does not bind the mortgagee, it
does not equally bind the auction-purchaser. It is interesting to
notice that in Rust v. Goodale('), Harman, J. held that the right
of the mortgagee to treat a tenant of the mortgagor as a trespasser
was a right which passed on sale or foreclosure to his assignee.
A lease granted by the mortgagor, out of the ordinary course
of management, though not binding on the mortgagee, is binding
as between the mortgagor and the lessee. Such a lessee acquires
an interest in the right of redemption and is entitled to redeem.
If such a lease is created before the institution of a suit relating
to the mortgage, the lessee must be joined as a party to the suit
under 0 34, r. 1, CPC; otherwise he will not be bound by the
decree passed in the. suit and will continue to retain his right of
redemption.
But in view of s. 52 of the Transfer of Property
Act, if the mortgagor grants such a lease during the pendency of
a suit for sale by the mortgagee, the lessee is bound by the result
of the litigation. If the property is sold in execution
of the
decree passed in the suit, the lessee cannot resist a claim for possession by the auction-purchaser. The lessee could apply for being joined as a party to the suit and ask for an opportunity to
redeem the property. But if he allows the property to be sold in
execution of the mortgai!e decree and they have now Jost the
present case, the lessees allowed the suit lands to be sold in
execution of the mortgage decree and they have now lost the
rigl.Jt of redemption. They cannot resist the claim of the auctionpurchaser of recovery of possession of the lands.
If a mortgagor in possession of the mortgaged property executes a lease of the property· in the ordinary course of management as the agent or bailiff of the mortgagee during the pende1?CY
of a suit by the mortgagee to enforce the mortga~e. a quest10n
may arise whether such a lease is in the eye of· the law a lease
granted by the mortgagee through his agent a~d therefore bin.ding on him. But in the present case, that question does not anse
(t)[19S7] 1 Ch 33, 42, 43.
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MANGRU V. TAllAKBSHWAR MATH (Bachowat, J,)
133
as the leases were not granted by the mortgagor in the ordinary
course of management as the bailiff or agent of the mortgagee.
The High Court held that the leases were sham transactions.
We do not think it necessary to decide this question. Even
assuming that the leases were not sham transactions they were
not binding on Kashinath and the deity. The High Court rightly
decreed the suit.
The appeals are dismissed with costs.
There will be one
hearing fee,
Y.P.
Appeals dismissed.