Kasturi vs Venkatachalapathi

There can be no doubt that if plaintiff himself had been the holder of the prior encumbrance when he brought the property to sale he would be

subsequently estopped from enforcing the lien of which he had given no notice. See Agarchand Gumanchand v. Rakhma Hanmant ILR 12 Bom.

678, followed by this Court in Jaganatha v. Gangi Reddi ILR 15 Mad. 303, Nursing Narain Singh v. Roghoobur Singh ILR 10 Cal. 609, Tinnappa

v. Murugappa ILR 7 Mad. 107. The decision in Banwari Das v. Muhammad Mashiat ILR 9 All. 690 is not in conflict with these decisions, since in

that case it was not attempted to be shown that the provisions of Section 287 of the CPC had not been complied with vide judgment of edge, C.J.,

page 702. All that was urged was that plaintiff as a bidder had not personally announced his encumbrance.

It is urged in this suit that it was not plaintiff but Aundi Chakrapani Chetti who held the prior mortgage. It is admitted, however, that this man

was plaintiff''s partner, and that plaintiff was aware of the existence of the prior mortgage of Which he took an assignment some years after the

sale.

It appears to us to be immaterial that a suit by Chakrapani Chetti himself might have been successful. The ground of decision is that it was

plaintiff himself who led intending purchasers to believe that the property was offered for sale free of encumbrances, and that plaintiff by concealing

the existence of a lien, of which he was aware, led the purchaser to pay full value for the property. He is, therefore, estopped from now denying

that the sale took place free of encumbrances (Section 115, Indian Evidence Act). u/s 237 of the CPC the plaintiff as execution-creditor was

bound to specify the judgment-debtor''s interest so far as be had been able to ascertain it. Tinnappa v. Murugappa ILR 7 Mad. 107.

On this ground the decrees of the Courts below must be reversed so far as second defendant is concerned and the plaintiff''s suit dismissed with

costs throughout.