TMI Blog1955 (8) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... . 781 of 1950, is for the purpose of passing a final decree for redemption under Order 34, Rule 8, of the Civil Procedure Code and for directing the first defendant to deliver possession of the mortgaged properties and render accounts in respect of future profits from 22nd September, 1941, until delivery of possession. This application was preferred by the second defendant, who, as stated before, was one of the mortgagors. The complications in the case have arisen out of the fact that subsequent to the usufructuary mortgage in favour of the first defendant, he let the third defendant into possession as a tenant under him, and it is the obstruction caused by this tenant that has been responsible for the proceedings now before this Court, and the effect of this obstruction on the rights of the parties is the subject-matter for adjudication in the Civil Revision Petition and the Civil Miscellaneous Second Appeal now before me. 3. To continue the narration of the facts immediately after the receipt the mortgage money from Court on 22nd September, 1948, the first defendant issued a notice (Exhibit R. 5) to the third defendant, his tenant, directing him to pay the rent subsequent to 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time this application came on for hearing the petition for eviction had been dismissed by the Rent Controller and the appeal against it by the appellant was pending. The learned District Munsiff, who heard the application LA. No. 781 of 1950 held that the 2nd defendant having accepted the third defendant as a tenant under him by reason of the proceedings for eviction taken against the latter could not claim to have a decree for mesne profits as against the 1st defendant. On this ground he dismissed the petition in full even in regard to the prayer for final decree for redemption. The appellant took the matter in appeal to the learned Subordinate Judge of Kumbakonam. He allowed the appeal in so far as it related to the prayer for a final decree for redemption; but in regard to the claim for mesne profits he dismissed it. The ground upon which this dismissal was rested was that the appellant was estopped from claiming any mesne profits from the first defendant by reason of certain conduct which is referred to in the judgment. It is from this order of the learned Subordinate Judge that the present Revision Petition and the alternative Civil Miscellaneous Second Appeal have been fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce by the mortgagor of that tenancy, his right, to proceed against the mortgagee for mesne profits was not extinguished. But what stands in the way of the appellant's contention is the legal effect of the proceedings for eviction before the Rent Controller initiated by him. 7. The learned Subordinate Judge decided against the appellant on the ground that he was estopped from proceeding against the first defendant by reason of the eviction proceedings. Mr. Venugopalachari submitted that this was erroneous in that the first defendant had suffered no prejudice by reason of the appellant proceeding against the third defendant. I am not inclined to agree with this submission. If the appellant had indicated that he did not propose to recognise the third defendant as his tenant but would proceed only against the first defendant the latter might certainly have taken steps to recover rents as also possession from his tenant so that he might satisfy the claims of the appellant. In the face of the action by the appellant against the third defendant, the first defendant could certainly not himself have proceeded against the latter. Meanwhile the third defendant has become insolvent. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sert that the third defendant was not his tenant and claim to treat the first defendant as continuing in possession and therefore liable to pay him mesne profits by reason of wrongful occupation. I am clearly of the opinion that he cannot and that he is precluded by his election in so doing. 9. Mr. Venugopalachari contended that the effect of the eviction proceedings did not unmistakably evince any intention to treat the third defendant as his tenant. I am, however, unable to agree in this submission in view of the terms of the allegations contained in the application for eviction as well as the grounds put forward in the memo of appeal to the Appellate Authority from the order of the Rent Controller. For instance in ground No. 3 in the appeal grounds the second defendant insisted that the Rent Controller ought to have held that the petitioner is the landlord and the respondent is a tenant under the Act and as such the petition is sustainable. In my opinion, there is here a clear case of election and the second defendant must be taken by reason of his conduct to have accepted the third defendant as his tenant with the necessary result that he could no longer look to the first ..... X X X X Extracts X X X X X X X X Extracts X X X X
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