K.MUTHUSWAMI GOUNDER versus N. PALANIAPPA GOUNDER

Citation: [1998] SUPP. 1 S.C.R. 206 · Decided: 31-08-1998 · Supreme Court of India · Bench: S.C. AGRAWAL · Disposal: Dismissed

Judgment (excerpt)

A 
K.MUTHUSWAMJGOUNDER 
v. 
N. PALANIAPPA GOUNDER 
AUGUST 31, 1998 
B 
1s.c. AGRAWAL, B.N. KIRPAL ANDS. RAIENDRA BABU, n.1 
Civil Procedure Code, 1908 : 
Judgment debtor executing registered deed for raising attachment before 
C judgment-Property subject to prior enrnmbrance i11 favour of Re.1p011-
de11t-Appellant, auction purchaser seeking to enforce a 1ight over the prope1ty 
as a puis11e 11101tgagee-T1ial Cowt granting decree on the fi11di11g that it 
creates a charge-Prayer for possession rejected-Decree co11fi11ned in first 
appeal-011 second appeal suit of the appellant dismissed i11 entirety, by High 
Cowt-Whether the dornment creates a charge in favour of appellant-Held, 
D 
11~Wlzat was granted by the document for raising attachment is only a11 
1mde11aki11g which would not amount to a charge-Judgme11t of High Cmm 
upheld. 
Order XL! Rule 33-Ei:ercise of discretion by High Cowt-At the stage 
of second appeal-Suit by appellant decreed in pmt-No appeal by Respo11-
E dent i11 so far as decree granted-Finding of llial Cowt confi1111ed i11 first 
appeal-Second appeal by appella11t for remaini11g praye1~--High Cowt dis-
missi11g th~ appeal as well as the Suit itself 011 the ground of no valuable 
light-Held, exercise of discretion by High Cowt approp1iate in the cir-
cwnsta11ces of the case. 
F 
Section I I-Res Judicata-Suit by appella11t-Decree in pmt-Appeal 
by appellant pe11di11g i11 High Cowt as regards remai11i11g prayer~--High Cowt 
dismissing Suit i11 e11tiretyHeld, the findings i11 favour of appellant by tlial 
Cowt and fin·t Appellate Cowt ca1111ot operate as Res Judicata. 
G 
The Respondent filed a civil suit to restrain the Appellant from 
interfering with the possession of the suit property. The Appellant filed civil 
suit for redemption of the suit land and recovery of the possession thereof'. 
The suit land originally belonged to one G. who executed a registered 
security bond in 1950 for a sum of Rs. 3,01111 hypothecating the suit property 
and also executed a promissory note in favour of one V and borrowed 
H monies. V obtained a decree and the property was purchased by the 
206 
.~ 
.A 
7 
K. M. GOUNDER v. N.P. GOUNDER 
207 
Respondent in Court auction sale which was confirmed on 15.3.57. The A 
Respondent also took delivery ofthe property. The Appellant is a purchaser 
of the suit property in 1962 when it was sold in execution by one S and Co. 
in pursuance of a money decree. In the said suit the plaintiffs got certain 
amounts due to G attached hefore G executed a registered deed (Ex. A6) on 
12.4.1950 in respect of the said property for raising the attachment. In the 
said deed the earlier security bond was recited as a prior encumbrance. The 
suits filed by the Appellant and the Respondent were tried jointly. The main 
issue in the suit was whether the deed (Ex. A6) executed by G for raising 
the attachment order creates any charge or was it only so an undertaking 
not to alienate the suit property. 
The Trial Court held that the suit property was intended to be and 
B 
c 
as a matter of fact given as a security for the payment of the sum of Rs. 
7,000 being costs and interest in the case. The trial court further held that 
under Ex. A6 a charge of a peculiar nature is created and that there was an 
unquestioned liability and there must be some mode of enforcing it. The 
trial Court held that the Respondent is the ultimate owner of the final D 
equity of redemption subject to the right of the Appellant to redeem the first 
mortgage and that the Appellant was not entitled to redeem entire property 
including the final equity of redemption and therefore passed a decree for 
redemption of the first mortgage in favour of the Appellant but held that 
he was not entitled to claim possession of the property and granted the 
Respondent the relief of injunction. 
The first appeal filed by the Appellants was dismissed holding that 
E 
the relief of injunction was correctly granted to the Respondent. The 
appellate court also confirmed the decree for redemption but enhanced the 
amount payable from Rs. 1501 to Rs; 5,000. The appeal of the Respondent 
F 
against the non awarding of costs in the injunction suit was dismissed. The 
appellate Court held that attachment of charged property does not in-
validate claim in pursuance of the charge and that the purchaser in such 
a sale gets the right of the mortgage. 
On second appeal by the Appellant the Division Bench of the High G 
Court held that the facts av

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