TMI Blog2011 (6) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s peaceful possession and enjoyment of the suit property. 2. Initially the suit was filed against Mohamed Idris, the first Respondent alone showing him to be the sole Defendant. Subsequently, as per order dated 20.10.2008 made in A. No. 1347/2008, Respondents 2 and 3 were impleaded as Defendants 2 and 3. The suit was resisted by the first Defendant by filing a written statement. After their impleadment Defendants 2 and 3 also filed written statement and thereafter the Appellant/Plaintiff filed a reply statement. At the conclusion of the trial, the learned single judge of this Court dismissed the suit with costs by judgment and decree dated 26.07.2010 and the said decree is impugned in this appeal. 3. The plaint averments in brief, are as follows: i) The suit property bearing old door No. 13 and the present door No. 148, Portuguese Church Street in George Town, Chennai - 600 001 belonged to one Thayub Begum. During her life time, she mortgaged the said property by a registered simple Mortgage Deed dated 09.01.1970 bearing document No. 14/1970 in favour of one Indra Kanvar Bai Taleda for a sum of ₹ 9,000/-agreeing to repay the said amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egum passed away and Mohamed Idris, the first Defendant/first Respondent in the appeal was impleaded as the legal heir of Ayisha Begum. Subsequently, the same came to be numbered as O.S. No. 9869 of 1990 on the file of the VII Assistant Judge, City Civil Court, Chennai on 07.11.1990. On 06.11.1991 the said suit was decreed ex-parte against Ziauddin and T.M. Abdul Rahman, the Defendants therein. Mohanam, the Appellant herein/Plaintiff was not a party to the said suit and he was not aware of the same. After his purchase, the Plaintiff Mohanam came to know about the decree, when service of summons was effected on him in a subsequent suit O.S. No. 9822/1992 filed by Mohamed Idris, the first Respondent herein/first Defendant, on the file of the City Civil Court, Chennai for redemption of the mortgage executed under the deed dated 09.01.1970. Mohanam, the Appellant herein/Plaintiff, was arrayed as the 4th Defendant in the said redemption suit,. Mohamed Idris, the first Respondent herein/first Defendant did not have any locus standi to file the said suit for redemption of mortgage and he had filed the suit by falsely claiming to be the legal heir of Thayub Begum. Subsequently, Mohanam, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was resisted. However, the learned VIII Assistant Judge, City Civil Court, Chennai, passed an order on 08.11.2004 dismissing the said petition with an observation that no liberty was required for filing a fresh suit for the same relief after the disposal of the other suit O.S. No. 9869/1990, which would constitute a different cause of action and thus, in effect granted the very same relief sought for. Therefore, Mohanam, the Appellant herein/Plaintiff filed a petition in I.A (SR) No. 47183 of 2004 under Section 21(2) of Code of Civil Procedure praying for determination of pecuniary jurisdiction relating to the suit property as a preliminary issue. The learned VII Assistant Judge, City Civil Court, Chennai passed an order in the said petition on 18.11.2004 to the effect that the same could be taken up after the disposal of I.A. No. 20239/2004, a petition filed for reception of additional written statement in O.S. No. 9869/1990. The said IA No. 20239/2004 in O.S. No. 9869/1990 was allowed on 29.11.2004. But the application filed under Section 21(2) of Code of Civil Procedure was not taken on file and on the other hand, the judge suo motu framed a preliminary issue and closed the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erived any redeemable right through her mother over the suit property, the first Defendant has no locus standi to seek to set aside the sale deed executed in favour of the Appellant's/Plaintiff's vendor by the assignee/mortgagee along with the adopted daughter of Thayub Begum, namely Nasreen Begum, who signed it as a confirming party. Further, the act on the part of the first Respondent/first Defendant filing the suit O.S. No. 9822/1992 for redemption of mortgage and withdrawing the said suit after 14 years with liberty to file a fresh suit on the same cause of action is nothing but gross abuse of process of law. Therefore, the Appellant/Plaintiff is entitled to the above said reliefs sought for in the plaint. 3. The suit was resisted by the first Defendant by raising the following contentions in his written statement: i) Mrs. Thayub Begum, the original owner of the suit property had rented out her house consisting of ground floor, first floor and second floor to one Pukhraj Jain for a monthly rent of ₹ 3,000/-exclusive of electricity charges. After the death of Thayub Begum, the tenant stopped making payment of rent to anybody and the said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad no interest and had no right to execute a sale deed in favour of the Appellant herein/Plaintiff. The alleged sale deed dated 10.06.1988 is not a true one and the same is void in law. The Appellant herein/Plaintiff has no locus standi to file the suit based on the said sale deed and the present suit is a vexatious one. Respondents 2 and 3/Defendants 2 and 3 are the lawful owners of the suit property, having purchased it from the first Respondent/first Defendant. The first Respondent herein/first Defendant had filed a suit against the Plaintiff in O.S. No. 9869/1990 on the file of the VII Assistant Judge, City Civil Court, Chennai. The suit was decreed against the present Appellant/Plaintiff on 14.06.2006. Appellant herein/Plaintiff has not filed any appeal against the judgment and decree passed in O.S. No. 9869/1990 on the file of the VII Assistant Judge, City Civil Court, Chennai and the said decree will operate as res judicata. Before the said ex-parte decree was passed on an application filed by the Appellant herein (6th Defendant in the said suit), the court passed an order directing valuation of the suit for the relief of declaration at ₹ 2,00,000/-and payment of a def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lakhs. An inspection of the property was sought to be conducted by the Inspecting Officer, but the same was resisted by the Appellant/Plaintiff on the premise that he was in possession of the suit property. The value of the land on the date of sale in favour of Respondents 2 and 3/Defendants 2 and 3 was ₹ 1,800/- per sq.ft. Even the land value as per the guideline value fixed by the Registration Department comes to ₹ 15,12,000/-. The building was also valued at a lower rate of ₹ 7,01,330/-. The Respondents 2 and 3/Defendants 2 and 3 paid a sum of ₹ 81,072/-by way of deficit stamp duty and got the document numbered and registered despite the objections raised by the Appellant/Plaintiff. The first Respondent/first Defendant falsely declared as if he delivered vacant possession of the suit property to the purchasers. He has also falsely declared that he paid all public outgoings in respect of the suit properties. This Court had also granted interim injunction restraining the Defendants from proceeding with the execution petition. As such, a false recital was incorporated in the sale deed as if possession was handed over to the purchasers, namely Respondents 2 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dency of the suit is hit by the doctrine of 'lis pendens' and therefore non-est in law? 8. Whether the suit is not within the time of limitation? 7. In the trial, the Appellant/Plaintiff figured as the sole witness (P.W.1) and marked 42 documents as Exs.P1 to P42, on his side. On the side of the Respondents/Defendants, the Defendants 1 and 2 figured as D Ws.1 and 2 respectively and 10 documents were marked as Exs.D1 to D10. At the conclusion of trial, the learned single judge considered the pleadings and evidence in the light of the points raised on both sides in the arguments advanced by the counsel and upon such consideration, came to the conclusion that the Appellant/Plaintiff was not entitled to any of the reliefs sought for in the plaint and dismissed the suit with cost by judgment and decree dated 26.07.2010. 8. Aggrieved by and challenging the same, the unsuccessful Plaintiff in the civil suit C.S. No. 434/2007 has filed the present Original Side Appeal on the grounds set out in the Memorandum of Grounds of Original Side Appeal. 9. The points that arise for consideration in this appeal are: i) Whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he suit property. 12. The first and fourth reliefs depend upon the outcome of the second prayer. The second prayer, in turn, depends on the outcome of the third prayer seeking cancellation of the decree passed in O.S. No. 9869 of 1990. Therefore, let us take up for discussion, the sustainability of the third prayer at the first instance. 13. Admittedly one Thayub Begum was the original owner of the suit property and she had let out the property to one Pukhraj Jain. At the time of induction of said tenant, the property had a building with ground plus two floors .Subsequently, the third floor was also constructed. In respect of the suit property, Thayub Begum had created a simple mortgage by executing Ex.P1 Mortgage deed dated 09.01.1970 in favour of Indra Kanvar Bai Telada. The amount secured by the mortgage was ₹ 9000/-. It is also an admitted fact that the mortgagor, namely Thayub Begum, without redeeming the mortgage, died on 01.04.1978. The mortgage deed Ex.P1 also contains a clause enabling the mortgagee to bring the property for sale either in public action or by private negotiation in terms of Section 69 of the Transfer of Property Act for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy in damages against the person exercising the power. (4) The money which is received by the mortgagee, arising from the sale, after discharge of prior encumbrances, if any, to which the sale is not made subject, or after payment into court under Section 57 of a sum to meet any prior encumbrance, shall, in the absence of a contract to the contrary, be held by him in trust to be applied by him, first, in payment of all costs, charges and expenses properly incurred by him as incident to the sale or any attempted sale; and, secondly, in discharge of the mortgage-money and costs and other money, if any, due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorised to give receipts for the proceeds of the sale thereof. (5) Nothing in this section or in Section 69A applies to powers conferred before the first day of July, 1882. The power granted to the mortgagee under Ex.P1 mortgage deed squarely falls within the ambit of Section 69(1)(c) of the Transfer of Property Act, 1882 since the property situates within the town of Chennai, formerly known as Madras. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decree dated 06.11.1991, the first Defendant Mohammed Idris filed a suit in O.S. No. 9822 of 1992 on the file of the City Civil Court, Chennai for redemption of mortgage, for recovery of possession and also for rendition of accounts, since by then possession of the property had been with Mohanam, the Plaintiff herein. Only thereafter Mohanam got the ex-parte decree set aside and got impleaded as 6th Defendant in O.S. No. 9869/1990. In the said suit O.S. No. 9822 of 1992, all other persons, who had been made as co-Defendants remained ex parte and Mohanam, the Plaintiff herein who figured as the fourth Defendant therein alone contested the suit. Since recovery of possession was also sought for, he raised a preliminary objection as to the correctness of the valuation of the reliefs and payment of court fee and presented a petition praying for the return of the plaint for presentation in proper Court on the premise that the City Civil Court did not have the pecuniary jurisdiction since the value of the property, as per the test report of Amin, was ₹ 20.00 Lakhs. The said application was dismissed by the learned VII Assistant Judge, City Civil Court, Chennai with the observation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 47.00 Lakhs as per his valuation or at least at ₹ 20.00 Lakhs as per the value arrived at by the Amin. A learned Single Judge of this Court (Thiru. Justice T.V. Masilamani) after hearing the arguments, dismissed the said civil revision petition with exemplary cost of ₹ 5,000/-by an order dated 12.04.2006. A further direction had been incorporated in the said order directing payment of ₹ 2,500/-out of the total cost awarded therein to Mohammed Idris, the first Respondent/first Defendant and the payment of the balance ₹ 2500/-to the Tamil Nadu Mediation and Conciliation Centre, High Court, Madras within four weeks from the date of order. Prior to the disposal of the said civil revision petition, another Civil Revision Petition in CRP No. 934 of 2004 came to be filed and the same was disposed of with a direction to dispose of the original suit O.S. No. 9869 of 1990 expeditiously, in any event not later than 30.06.2004. Taking note of the said order, the learned Single Judge in the order dated 12.04.2006 made in C.R.P.(PD) No. 54/2005 extended the time for disposal of the suit and directed disposal of the suit on merits and in accordance with law on or before 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned senior counsel also relied on the observation of the Hon'ble Supreme Court in State of Andhra Pradesh and another v. T. Suryachandra Rao reported in (2005) 6 SCC 149 to the effect that the fraud vitiates every solemn Act and fraud and justice never dwell together. In A.V. Papayya Sastry and Ors. v. Govt. of Andhra Pradesh and Ors. reported in (2007) 4 SCC 221 also, the Hon'ble Supreme Court has observed that fraud vitiates all judicial acts whether in rem or in personam and that a judgment, decree or order obtained by fraud has to be treated as non est and nullity, whether by the Court of first instance or by the final Court and that the same can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (dead) By L.Rs. reported in (2008) 8 SCC 511, the Hon'ble Supreme Court has again reiterated the point that a judgment or decree obtained by fraud either in the first court or in the highest Court, is a nullity in the eye of law. 20. Per contra, the learned Counsel for the Respondent relied on the decision of the Hon'ble Supreme Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fraud. But as rightly pointed out by the learned Counsel for the contesting Respondent, the Appellant/Plaintiff has not couched his plea in clear and unambiguous terms detailing the fraud played by the first Defendant in obtaining the decree against the Appellant herein/Plaintiff. However, a thorough scrutiny of the pleading and evidence and consideration of the submissions made by the learned senior counsel on behalf of the Appellant/Plaintiff will go to show that the contention of the Appellant is to the effect that the decree was obtained by virtue of the deliberate misrepresentation amounting to fraud made by the original Plaintiff in O.S. No. 9869 of 1990, namely Ayisha Begum that she was the legal heir of the original mortgagor Thayub Begum. It is the contention of the Appellant herein/Plaintiff that Ayisha Begum could not have become a legal heir of the original mortgagor Thayub Begum as the said Thayub Begum had been married to one Sheik Abdul Khadir and though she was divorced by her husband, she was survived by her four children (two sons and two daughters) and that hence Ayisha Begum, who claimed to be the sister of Thayub Begum could not have become the legal heir of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital status of Thayub Begum and the relationship between Thayub Begum and Ayisha Begum and in turn between Ayisha Begum and Mohammed Idris. 24. In fact, the Plaintiff in the present suit (Appellant) in paragraph 7 of the plaint, in support of his contention that Ayisha Begum, the original Plaintiff in O.S. No. 9869 of 1990 claiming to be the sister of Thayub Begum could not maintain the suit as a legal heir/legal representative of Thayub Begum, simply relied on the averments found in Paragraph 4 of the plaint in O.S. No. 9822 of 1992 to the effect that Thayub Begum was married to Sheik Abdul Khadir, who divorced her and then left to Pakistan with all his children and permanently settled there. Making a claim, correctly stating the facts, will not amount to a misrepresentation, much less a fraud on the Court. There must be a statement which is not believed to be true by its maker or a statement which the maker knows to be false or else there should be a deliberate suppression of a fact when the circumstances warrant revelation of the fact. In this case, there is no suppression of fact and no incorrect or false statement is proved to have been made either by Ayisha Begum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not the sister of Thayub Begum. 26. On the other hand, DW1 has given clear evidence in line with the averments made in the plaint in O.S. No. 9869 of 1990 and also the plaint in O.S. No. 9822 of 1992 regarding the relationship between Thayub Begum and D.W.1's mother Ayisha Begum. In addition, though the second Defendant who figured as DW2 has stated that he had no knowledge about the marriage of Thayub Begum with Sheik Abdul Khadir and the fact that they had two sons and two daughters, he has categorically denied the suggestion that the first Defendant, son of Ayisha Begum is not the legal heir of Thayub Begum. 27. It should be noticed that one Nasreen Begum had been added to Ex.P4 sale deed as a confirming party on the premise that she was the fostered daughter of Thayub Begum. Ayisha Begum and Mohammed Idris, in their respective plaints, had made clear averments to the effect that Nasreen Begum was not the adopted/fostered daughter of Thayub Begum and on the other hand, she was a stranger to the family. The said Nasreen Begum, who is projected as an adopted /fostered daughter of Thayub Begum and who was made to sign the sale deed Ex.P4 as a confir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment debtor is to challenge the decree in the very same proceedings either by filing an application to set aside the decree if it is an ex parte decree or by filing a review application to review the judgment based on which the decree was granted or file an appeal in the appellate forum or a revision before the competent forum to entertain revision against such decree or order as the case may be. The Appellant/Plaintiff has not chosen to adopt any one of the above said methods to challenge the ex parte decree dated 14.06.2006 made in O.S. No. 9869 of 1990 by the VII Assistant Judge, City Civil Court, Chennai. When a judgment, decree or order is challenged as one obtained by misrepresentation or by playing fraud on the Court and the party thus challenging the decree by way a separate suit fails to substantiate such a case of misrepresentation or fraud, it cannot be allowed to enlarge the scope of the subsequent suit by converting such a suit virtually into an appeal against the judgment or decree passed in another case by challenging the decree on other grounds which ought to have been raised as plea of defence in the former suit or proceedings in which the impugned judgment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine the witnesses examined by the Plaintiff. If the Plaintiff makes out a prima facie case the Court may pass a decree for the Plaintiff. If the Plaintiff fails to make out a prime facie case, the Court may dismiss the Plaintiff's suit. Every judge dealing with an ex parte case has to take care that the Plaintiff's case is, at least, prime facie proved. 30. The learned senior counsel also referred to the observations made by the Supreme Court in Modula India v. Kamakshya Singh Deo reported in 1988 4 SCC 619 to the effect that when the defence of Defendant is struck off, he would be placed in a position equal to that of a Defendant who has not filed any written statement and as such he would not be entitled to lead any evidence of his own, but at the same time, would be entitled to cross examine the witnesses examined on the side of the Plaintiff for the limited purpose of showing the unreliability of such evidence or the failure to prove the case of the Plaintiff. It has also been observed therein that while such Defendant can be permitted to cross examine the witnesses of the Plaintiff, he cannot be permitted to traverse beyond the very limited objective of po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge dealt with them elaborately and came to the conclusion that even such denial of opportunity was not substantiated by the Appellant/Plaintiff. The reason assigned are as follows: i) The suit O.S. No. 9869 of 1990 was filed for the relief of cancellation of the sale deed dated 07.01.1985 executed by the assignee/mortgagee Abdul Rahman in favour of Ziauddin, the vendor of the Appellant/Plaintiff and also for recovery of possession and rendition of accounts. The sale was purported to be made in exercise of the power given under a clause in Ex.P1 Mortgage deed conferring such right of sale under Section 69 of the Transfer of Property Act. The mortgage is a simple mortgage in which possession was not delivered to the mortgagee and it remained with the mortgagor. The property had been rented out to one Pukhraj Jain. After the death of the original mortgagor Thayub Begum, the tenant was uncertain about the person entitled to receive the rent, pursuant to which he filed a Rent Control Original Petition in R.C.O.P. No. 699 of 1985 on the filed of the Rent Controller, namely X Judge, Court of Small Causes arraying Ziauddin and Ayisha Begum, mother of the first Defendant as Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party Defendant in the other suit, namely O.S. No. 9869/1990, could have defended the said suit in the normal course, but for his failure to comply with the direction regarding payment of cost awarded by this Court in C.R.P.(PD) No. 54 of 2005, which resulted in striking off of his defence in the said suit. The legal position of a case in which the defence of the opposite party is struck off has been well illustrated by the observations of the Hon'ble Supreme Court relied on by the learned Counsel for the Appellant himself, which were referred to supra. A Defendant whose defence is struck off, is placed on par with a Defendant who did not file his plea of defence. The fact that a Defendant fails to file plea of defence within the time stipulated in the code or within the time extended by the court leading to the closure of the gates for such Defendant to put in his specific case of defence, does not mean that the case of the Plaintiff deserves to be accepted as proved and in such cases, an ex-parte trial recording ex-parte evidence shall be conducted. Even in such cases, if the Defendant appears at a later stage, he cannot be precluded from taking part in the proceedings from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law be found entitled. iv) In Balraj Taneja and Anr. v. Sunil Madan and Anr. Reported in AIR 1999 SC 3381, the Hon'ble Supreme Court has held that the court is not to act blindly merely because a written statement has not been filed by the Defendant traversing the facts set out by the Plaintiff in the plaint filed in the Court. In a case where a written statement has not been filed by the Defendant, the Court should be a little cautious in proceeding under Order 8, Rule 10, CPC. Before passing the judgment against the Defendant, it must consider whether a judgment could possibly be passed in favour of the Plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the Defendant who has not filed the written statement. If the plaint itself indicates that there are disputed questions of fact involved in the case, regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... played by the opposite side to obtain the decree. The Appellant herein/Plaintiff seems to have taken a collateral plea that the judgment of the trial court in O.S. No. 9869/1990 suffers from the vitiating factor, namely failure to give reasonable opportunity to the Appellant herein to take part in the proceedings and cross-examine the witnesses examined on the side of the opposite side, namely Plaintiff in O.S. No. 9869/1990. vi) In the foregoing discussions we have seen that the position of a Defendant whose defence has been struck out shall be on par with the position of a Defendant who has failed to file his plea in the form of written statement. In such cases, if the court is satisfied that the Defendant was prevented by a reasonable cause from filing a written statement in time, then it can set aside the ex parte order and allow him to file a written statement and thus restoring his position in the suit as if he had appeared on the date appointed for his hearing. In case the court comes to the conclusion that he has not satisfied the court regarding the reasonable cause, then, though it may be only in minority number of cases, such Defendant shall be precluded fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff therein, the court had acted with caution and proceeded to conduct an ex parte trial in which the Plaintiff therein was required to prove the facts pleaded in the plaint and after such ex parte trial only the court pronounced a judgment in favour of the Plaintiff therein and passed a decree as prayed for. vii) The grievance of the Appellant herein/Plaintiff that he was not allowed to cross-examine the witnesses examined on the side of the Plaintiff in O.S. No. 9869/1990 also is not tenable. The learned single judge has dealt with the said contention and held that the Defendant, whose defence had been struck off, did have a right to participate in the subsequent proceedings, but the Appellant herein/Plaintiff being the 6th Defendant in the previous suit did not come forward to cross-examine the witness examined on the side of the Plaintiff therein, nor did he seek permission to cross-examine such witnesses by filing any memorandum or petition; that on the other hand, he expressed his unwillingness and unpreparedness to take part in the proceedings on the premise that a review petition was filed and that the trial court in O.S. No. 9869/1990, after noting the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies, who had attached the properties for Income Tax dues. Admittedly the attachment was raised and then only the property was sold. At the time of execution of the said sale deed, the actual possession of the property was with the tenant and the tenant thereafter filed RCOP No. 699/1985 for deposit of rent as he was not certain as to who was entitled to collect the rent. It must be seen that before the dismissal of the said RCOP for non-prosecution, the mother of the Respondent filed the pauper OP challenging the EX.P4 sale. If at all constructive possession or even actual possession either in whole or in part of the property would have been obtained by the Appellant herein/Plaintiff, that would have been done only during the pendency of the said pauper OP and such creation of rights during the pendency of the proceedings is subject to the result of the lis as it is hit by the doctrine of lis pendens. That is the reason why the court which tried the suit No. 9869/1990 allowed the amendment of pleading to incorporate additional prayers for recovery of possession, mandatory injunction for the removal of the 3rd floor portion and for mesne profits and ultimately decreed the suit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the ex-parte decree dated 14.06.2006 passed in O.S. No. 9869/1990 by the VII Asst Judge, City Civil Court, Chennai setting aside the sale under Ex.P5 in favour of Ziauddin, the person from whom the Appellant/Plaintiff chose to purchase. In the discussion relating to the above said issues, we have seen that the sale in favour of the Appellant/Plaintiff under Ex.P5 was effected pending a suit filed by Ayisha Begum, which was continued by the first Respondent/first Defendant Mohamed Idris after her death, namely O.S. No. 9869/1990 on the file of the VII Asst. Judge, City Civil Court, Chennai and hence the same was subject to the result of the lis that was pending in the said suit. We have also seen that the challenge made to the decree dated 14.06.2006 passed in O.S. No. 9869/1990 on the ground of fraud and misrepresentation has not been substantiated by the Appellant/Plaintiff; that the Appellant/Plaintiff is not entitled to the relief of cancellation of the said decree and that the said decree dated 14.06.2006 passed in O.S. No. 9869/1990 would operate as res judicata. 35. It has also been held that the mortgage is a simple mortgage and the same could not be un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to recover possession since the possession of the Appellant herein/Plaintiff, who was the 6th Defendant in O.S. No. 9869/1990, could not be traced to the mortgage and the possession taken by the Appellant herein/Plaintiff during the pendency of the earlier suit was subject to the result of the said suit. Therefore, we are of the considered view that there is no defect or infirmity in the finding of the learned single judge that the Appellant herein/Plaintiff is not entitled to a declaration that the first Respondent herein/first Defendant does not have a redeemable right over the suit property. Point No. iv 37. The Appellant/Plaintiff did not comply with the direction of this Court in C.R.P.(PD) No. 54/2005 regarding payment of cost. Even though the order directed striking off of the defence in case of default in payment of the cost, the Appellant/Plaintiff had not chosen to either pay or deposit a paltry sum of ₹ 5,000/-awarded as cost to avoid the consequences detrimental to his defence in the said suit. He has shown his adamance in refusing to make payment and has chosen to multiply the litigation by filing a separate suit for setting aside the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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