Both the civil miscellaneous appeal and the civil revision petition have been filed against the order of the learned Subordinate Judge of Salem passed in I.A No. 72 of 1956 in a suit filed on a mortgage in favour of the petitioner before us. In execution of the decree, the petitioner has become the purchaser of the mortgaged property. The dispute is now confined to certain items of property which the mortgagee-purchaser claims as having been conveyed to him under the Court sale, whereas the mortgagor contends that they were never included in the mortgage nor in the proclamation of sale and the mortgagee purchaser did not obtain any title to the same. Apart from these two parties, another party who claims to be the lessee of the building and who was running a cinema in it claims that some of the items really were put up by him and they belong to him. The learned Subordinate Judge held that what was mortgaged to the petitioner was only the building which was at the time of the first mortgage under construction and the building could not include chairs, benches, projectors, etc. He held that these did not form part of the hypothetica and therefore the mortgagee-purchaser would not be entitled to them. The dispute between the mortgagor and the lessee as regards some of the items was reserved for disposal at a later date.
Mr. Ramamoorthi Aiyar, learned Counsel for the petitioner-mortgagee-purchaser contended that he would be entitled to the following items, namely, 94 ceiling boards, 12 ceiling fans, 4 exhaust fans and the entire electric installation.
The material portion of the proclamation of sale relating to the property which was being brought to sale runs as follows:
“the whole ground within these together with 8 thatched shops………built thereon…………and the vacant space going upto item (1) herein in the north and the new tiled building thereon; Municipal S. No. 221-B-1, together with the cinema theatre building being built (on dates of suit mortgages and subsequently completed and named Shanmuga Talkies) in items (1) and (2) of this A schedule with compound walls all round.”
The contention of Mr. Ramamoorthi Aiyar is that as what was proclaimed for sale was a Cinema Theatre building, all the above items claimed by him will go along with what may be called building proper. He referred us to Ss. 8 and 70 of the Transfer of Property Act and to the decisions in Vaudeville Electric Cinema Co. Ltd. v. Muriset(1) and Punjab and Sind Bank v. Kishen Sing Ghulab Sing (2). Mr. Ramaswami Aiyangar appearing for the mortgagor on the other hand contended that what was mortgaged and sold was only the building as such and not a cinema and whatever items were put in the building for the purpose of running a cinema would not pass to the purchaser. Learned Counsel for the lessee raised the objection that some of the items claimed belonged to him and were outside the scope of the mortgage and therefore the mortgagee-purchaser could in no event claim any of them.
Having given the matter my best consideration I must confess 1 have received very little benefit from the decisions cited before me—I think that having regard to the description of the mortgage property, what was intended to be hypothecated was only the building as such. It may be that the building was intended to be used for running a cinema but it was not a running cinema house as such that was mortgaged. In this view the ceiling boards and the ceiling fans and the exhaust fans would not form an integral part of a building, though they may be required to run a cinema in the building. So far, however, as the electric installation is concerned, I think a distinction should be made between the electric fittings which are removable and the electric installation consisting of the mains, the switch board and the connecting wires between the mains of the building and the mains of the electric supply. These later would obviously form an integral part of the house and intended to go along with the house. So would be the general electric wiring in the building. But electric fittings like fans, shades, bulbs, holders, plugs and other electric fittings which would go with these cannot form an integral part of the house. The mortgagee-purchaser of the building will not be entitled to them.
It is not necessary for me to decide whether an appeal lies in this case because an alternative civil revision petition also has been filed. The decision in Vellayan Chettiar v. Narayanaswami(3) appears however prima facie to support the contention that the appeal is maintainable.
In the result the order of the Court below will be modified in respect of the electric installation as abovementioned. In other respects the civil revision petition and the civil miscellaneous appeal are dismissed. No order as to costs.
V.C.S