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1938 (3) TMI 21

ff's title. Plaintiff's case briefly stated is as follows : The land described in Schedule 1 to the plaint belonged to the predecessors of defendants 5 and 6. The land described in Schedule 2 is a part of the land described in Schedule 1. The entire land of Schedule 1 was mortgaged to the predecessors of the plaintiff by a registered' simple mortgage bond oh 14th January 1917 to secure a 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 S .....

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f the plaintiff's predecessor in the mortgage suit. Defendants 2 and 4 appealed to the District, Judge but their appeal was dismissed by the Additional District Judge and the decree' of the Munsif was affirmed. A second appeal was taken to this Court by defendants 2 and 4. This appeal was heard by my learned brother Mukherjea J. Mukherjea J. held that defendants 1 to 4 were entitled to retain 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 P .....

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sary, for his protection. If however the equity of redemption is wholly unrepresented in the action, the purchaser at the mortgage-sale acquires nothing. He does not get the equity of redemption which includes the right to possess the mortgaged premises. The lien of the mortgagee also is not transferred to him. A mortgagee sells the property to satisfy his debt. He must be taken therefore to sell the mortgaged 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, .....

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