Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Proviso - Operation of - Equitable mortgage of property by Def No.3 and 4 in 1979 in favour of bank for a loan 1882: s. 60 Transfer of Property Act |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Transfer of Property Act, 1882: s. 60, Proviso - Operation of - Equitable mortgage of property by Def No.3 and 4 in 1979 in favour of bank for a loan - Non- payment of loan - Foreclosure suit by bank in 1987 for recovery of loan by sale of mortgaged property - Property was auction sold in 1993 in favour of Def No.2, auction purchaser - Plaintiffs- appellants stating to have purchased the mortgaged property in 1985 filed suit for redemption of mortgage in 1999 - Suit decreed by trial court but reversed in appeal by auction purchaser - Second appeal by plaintiffs dismissed - On appeal, held: Right to enforce a claim for equity of redemption is a statutory right under the Act - It necessarily presupposes the existence of a mortgage - The right to redeem can stand extinguished either by the act of parties or by operation of law in the form of a decree of the Court under the proviso to s. 60 - In the instant case, plaintiffs lost the right to sue for redemption of the mortgaged property by virtue of proviso to s.60 when the mortgaged property was put to auction sale in a suit ·for foreclosure by bank and sale certificate was issued in favour of auction purchaser - Thus, there was no subsisting mortgage to be F redeemed on the date of filing of the suit by plaintiffs - Right to redemption could not be claimed in the abstract. s.91 - Rights under, of purchaser of equity of redemption - Held: Appellants being purchasers of equity of redemption can claim no better rights u/s. 9 I than what their predecessor-in-interest had u/s.60 - Their rights could not be any superior or separate from that of their predecessor-in-interest. Mortgage - Right of redemption - Waiver by conduct. - When - Suit property mortgaged by Def No.3 and.4 in 1979 in favour of bank for a loan - Non-payment of loan - Property was A auction sold by bank in 1993 in favour of Def No.2 - Plaintiffs stating to have purchased the mortgaged property in 1985 filed suit in 1994 seeking permanent injunction against Def Nos. 2 to 4 - Held: Bank was not impleaded as a defendant in this suit - Def No.2 made full disclosure in this suit about the mortgage, foreclosure B suit filed by Bank, and the consequent auction sale - At this stage, sale certificate was not issued in favour of Def No.2 - However. plaintiffs did not take any steps to either amend the relief sought in the suit or seek redemption of mortgaged property by offering to deposit mortgage dues or even to set aside the auction sale u/Or. XXXIV, r.l, CPC- Thus, behaviour of Plaintiffs raises issue of waiver C by conduct w.r.t their right to redemption, notwithstanding the subsistence of the period of limitation to seek redemption - Limitation Act, 1963 -Art. 61 (a) - Code of Civil Procedure, 1908 - Or. XXXIV, r.l - Doctrine of Waiver. o Code of Civil Procedure, 1908 - Or. XXXlV, r.8 - Non- applicability of- Held: Suit for redemption of mortgage by plaintiffs- appellants was misconceived as u/r. 8 the right to redemption survived only till confirmation of the sale and not thereafter - Suit was instituted by appellants in 1999 only after issuance of sale certificate in favour of Def No.2 and thus the question for redemption had become irrelevant. |
Judge | Hon'ble Mr. Justice Navin Sinha |
Neutral Citation | 2017 INSC 481 |
Petitioner | Allokam Peddabbayya And Another |
Respondent | Allahabad Bank And Others |
SCR | [2017] 8 S.C.R. 121 |
Judgement Date | 2017-06-19 |
Case Number | 2763-2764 |
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