2004 INSC 1234
                                    SUPREME COURT OF INDIA

                                          Madurambigai Ammal

                                                      Vs.

                                             D. Somasundaram

                                             C.A.No.19 of 2000

                                (K. G. Balakrishnan and H. K. Sema JJ.)

                                                 03.11.2004

                                                JUDGMENT

1. The defendants are the appellants before us. The respondent nos. 1 to 7 filed a suit for
delivery of possession of mortgaged property. The mortgage was executed on 30/11/1974.
There were two subsequent mortgages one on 15-7-1975 and second on 18-12-1975. After
due notice to the mortgagors, the 13th defendant of the suit brought the suit property on
public auction after sufficient advertisements published in the newspapers and the auction
was held on 31.8.1981. The plaintiffs in the suit was the highest bidder in the auction.

2. They paid the entire amount and sought for execution of sale-deed of the mortgage. The
present appellants filed suit for redemption on 1-10-1981. Originally, it was filed in the form
of an application as an indigent person and later it was converted into suit. Based on the sale-
deed suit for possession was filed by respondent nos. 2 to 7 on 10.9.84. The present
appellants contended that by virtue the suit filed on 1.10.81, the right of redemption survived
and it was not effected by the sale held on 31.8.1981. This contention was rejected and suit
for possession filed by respondent nos. 2 to 7 was decreed. Against the same O.S.A. was
filed and by the impugned judgment the plea raised by the appellants was rejected.

3. We heard learned counsel for the appellants and learned counsel for the respondents.
Counsel for the appellants contended that right of the mortgagors to redeem could be
extinguished only after the sale deed is executed and as the sale deed was executed
subsequent to the suit appellants right of redemption is not lost.

4. It is argued that appellants had filed a suit for redemption prior to the execution of sale
deed, the right of redemption would survive and the appellants relied on second proviso to
Section 60 of the Transfer of Property Act, 1882. But we do not find any force in this
contention. The proviso specifically says that the right conferred by the right of redemption
conferred on the mortgagor under Section 60 could be extinguished by the act of parties or
by decree of the court. The sale deed was executed in favour of the auction purchaser on
10.11.81 and the appellants in his suit for redemption had not obtained any interim order

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staying the operation of the auction sale or the execution of any sale deed and in the absence
of such right of redemption would be extinguished.

5. The reliance was placed by the counsel for the appellant on the decision reported in
Narandas Karsondas vs. S.A. Kamtam and another . This decision is of no assistance to the
appellants as it is held in that decision that the right of redemption which is embodied in
Section 60 of the Transfer of Property Act is available to the mortgagor unless it has been
extinguished by the act of parties and it is only on execution of conveyance and registration
of transfer of the mortgagor's interest by registered instrument that the mortgagor's right of
redemption will be extinguished. In the instant case the sale deed was executed in favour of
respondent nos. 1 to 7 and the right of redemption did not survive and we do not find any
reason to interfere with the impugned judgment.

6. The appeal is accordingly dismissed.

No costs.

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