Meenakshi and Others vs Palaniappa Thevan and Others

Reilly, J.—The plaintiff alleged fraud in respect of the decree obtained by defendant 2 against defendant 1 on a promissory note purporting to have been executed by her deceased husband, ''fraud in connexion with the Court-sale held in execution of that decree and fraud in connexion with a mortgage by defendant 1 in favour of defendant 3, subject to which the Court-sale was held. Both the lower Courts have found that no fraud has been proved in respect of the decree. So far as the Court-sale is concerned the plaintiff''s allegation is that it was at the instance of defendant 2 made subject to the mortgage, which he alleges was a bogus one. If the decree stands, it is the property of defendant 1''s husband which had to be sold in execution and to bring that property to sale subject to a bogus mortgage would be fraud in publishing the sale within the meaning of Rule 90, Order 21, Civil P.C. The plaintiff as next reversioner was a person who could impeach the sale under Rule 90, Order 21, see Adanamoli Chetti and Others Vs. Chinnaswami Reddi and Others, , and he cannot maintain a suit for the same purpose. See Brahmayya v. Appayya Sastri AIR 1921 Mad. 121 and Bhim Singh v. Sanuan Singh [1889] 16 Cal. 33 But it is urged for the plaintiff that at any rate he can institute a suit for a declaration that the mortgage is not binding beyond defendant 1''s life. That he could have done before the sale. But unless he gets the sale set aside, no declaration regarding the mortgage will be of any use to him or should be made in his favour.

The appeal is allowed, and the District Munsif''s decree dismissing the suit is restored. As the plea that the suit in regard to the Court-sale is not maintainable was raised only in argument in this Court, each party will bear his own costs throughout.