NARAYAN DEORAO JAVLE (DECEASED) THROUGH LRS. versus KRISHNA & ORS.

NARAYAN DEORAO JAVLE (DECEASED) THROUGH LRS. versus KRISHNA & ORS.

Where a purchaser acquires title and possession of part of mortgaged property by registered sale before a foreclosure suit is instituted, that purchaser is a necessary party under Section 91 of the Transfer of Property Act and Order XXXIV Rule 1 CPC; a foreclosure decree obtained without impleading such purchaser, especially where collusion between mortgagor and mortgagee is shown, is void and does not extinguish the purchaser's statutory right of redemption under Section 60; the purchaser may redeem the purchased share by depositing the mortgage amount and seek restoration of possession.

Parties
Appellant / Plaintiff: NARAYAN DEORAO JAVLE (DECEASED) THROUGH LRS.; Respondents / Defendants: KRISHNA & ORS.; Original Mortgagors / Defendants: Defendant Nos. 1 & 2 (original mortgagors); Mortgagee / Defendant: Defendant No. 3 (mortgagee)
Jurisdiction
India
Judgment Date
17 August 2021
Procedural Posture
Civil Appeal / On Appeal From Judgment of the High Court of Judicature at Bombay (second Appeal No.441 of 1995)
Outcome
Appeal allowed
Legal Topics
Right of Redemption, Foreclosure, Impleadment of Parties, Equity of Redemption, Res Judicata, Execution Proceedings
Transfer of Property Act, 1882 Code of Civil Procedure, 1908 Property Law Mortgage Law Right of Redemption Foreclosure Impleadment of Parties Equity of Redemption +2 more

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Parties

NARAYAN DEORAO JAVLE (DECEASED) THROUGH LRS.

Appellant / Plaintiff

KRISHNA & ORS.

Respondents / Defendants

Defendant Nos. 1 & 2 (original mortgagors)

Original Mortgagors / Defendants

Defendant No. 3 (mortgagee)

Mortgagee / Defendant

Procedural Posture

Civil Appeal / On Appeal From Judgment of the High Court of Judicature at Bombay (second Appeal No.441 of 1995)

Legal Issues

  1. 1 Whether a subsequent purchaser from a mortgagor who acquired title and possession before a foreclosure suit is a necessary party to that suit
  2. 2 Whether a decree for foreclosure obtained without impleading such purchaser extinguishes the purchaser's right of redemption
  3. 3 Whether a purchaser of part of mortgaged property can redeem the purchased share by payment of the entire mortgage amount

Ratio Decidendi

Where a purchaser acquires title and possession of part of mortgaged property by registered sale before a foreclosure suit is instituted, that purchaser is a necessary party under Section 91 of the Transfer of Property Act and Order XXXIV Rule 1 CPC; a foreclosure decree obtained without impleading such purchaser, especially where collusion between mortgagor and mortgagee is shown, is void and does not extinguish the purchaser's statutory right of redemption under Section 60; the purchaser may redeem the purchased share by depositing the mortgage amount and seek restoration of possession.

Court Disposition

Appeal allowed

Orders

  • Judgment of the High Court dated 21.01.2015 is set aside
  • Judgment of the First Appellate Court is restored