Judgment :- Several interesting questions of law were argued by learned counsel for appellants at length. But, unfortunately, most of them do not arise for consideration in case on the facts of the case. 2. The facts are shortly these: The plaintiff who died pending the second appeal, executed -mortgage of the suit property in favour of the 1st defendant on 28.10.1963 for a sum Rs.25,000. The plaintiff executed a promissory note in favour of the 4th defendant who a suit thereon and in execution of the decree passed in that suit, purchased the equity redemption on 23.1.1969. Thereafter, the plaintiff executed a second mortgage in favour the second defendant on 20.5.1971 for a sum of Rs.10,000. The plaintiff executed the mortgage in favour of the third defendant on 20.12.1971 for a sum of Rs.5,000. The defendant who has been repeatedly demanding the amount due from the plaintiff first mortgage brought the property to sale in exercise of its power under Sec.69 of Transfer of Property Act and on 5.2.1972, the property was sold. The 5th defendant was highest bidder and she became the purchaser. But, on 18.2.1972, the plaintiff filed present suit O.S.No.1470 of 1972 on the file of City Civil Court, Madras for a declaration the sale dated 5.2.1972 was invalid and null and void and for an injunction restraining first defendant from executing a sale in favour of the third defendant. As per the plaint, third defendant was the purchaser in the auction sale. The 5th defendant was impleaded the plaintiff much later as the plaintiff found out that the purchaser was the 5th defendant. 3. As soon as the suit was filed, the plaintiff obtained an order of injunction from the court restraining the first defendant from executing a sale deed in favour of the purchaser. The suit was dismissed for default on 19.4.1975 and restored to file only later. Before suit was restored to file, the first defendant executed a sale deed on 15.7.1975 in favour the 5th defendant, the registration copy of which is marked as Ex.A-11. In fact, the defendant was impleaded as a party to the suit only on 2.4.1976 after the restoration thereof. 4. The only ground of attack against the private sale made in the plaint was that there no proper publicity to the auction and there was fraud and irregularity in the conduct of auction. In fact, the defendant was impleaded as a party to the suit only on 2.4.1976 after the restoration thereof. 4. The only ground of attack against the private sale made in the plaint was that there no proper publicity to the auction and there was fraud and irregularity in the conduct of auction. In the plaint, it was averred that the third defendant was requested by the to help her to cleat her debts and she executed in his favour a general power of attorney respect of the management of the suit property. But the averment proved to be false power of attorney marked as Ex.A-2 shows that the third defendant was empowered to manage only the business of the plaintiff and he had nothing to do with the suit property as such. It was also averred in the plaint that the plaintiff executed the third mortgage in favour of the third defendant for expenses to be incurred him for the purpose of clearing her debts. According to the plaintiff, the third defendant a cheque for Rs.1,000 from out of the consideration for the mortgage to the first defendant, in order to prevent the first defendant from bringing the property to sale. It was alleged the third defendant wanted the plaintiff to sell the property for Rs.45,000 and as she refused to do so, he turned against her and stopped payment of the cheque. It was further that the third defendant himself purchased the property at the auction held on 5.2.1972 scaring away the bidders and having a few of his own men to bid, to make it appear regular auction. The plaintiff stated in the plaint that she had an offer from a Mrs.K.R.Muthayi Ammal to purchase the property for Rs.50,000 free of encumbrances that an affidavit sworn to by the said person was filed as an enclosure. I do not find reference whatever to the said affidavit in the list of documents set out in the plaint; does the index of the papers sent by the courts below make any reference to such affidavit. No reference was made to the affidavit in the evidence of the plaintiff’s husband P.W.1. Learned counsel for the respondents states that they have not been aware such affidavit having been filed in court. Excepting for the reference thereto in the there is no trace whatever of the said affidavit. 5. No reference was made to the affidavit in the evidence of the plaintiff’s husband P.W.1. Learned counsel for the respondents states that they have not been aware such affidavit having been filed in court. Excepting for the reference thereto in the there is no trace whatever of the said affidavit. 5. Both the courts have concurrently held that the contentions of the plaintiff that there no due publicity to the auction, the property was worth much more than what is fetched the auction and the third defendant had played fraud to purchase the property in the of his wife were not substantiated by evidence. They are all questions of fact and sitting second appeal, I cannot interfere with the findings. However, in view of the fact that learned counsel argued at length all these aspects of the matter, I would refer only to a few which are relevant to show that the findings of the courts below are unassailable. 6. The documents filed by the defendants show that notices were issued sufficiently advance to the plaintiff before the auction was held. They also show that the auction attempted to be held on several dates, but it was postponed at the instance of the plaintiff and P.W.1. It is also seen that the registered letters sent by the auctioneers to the plaintiff and P.W.1 returned unserved to the auctioneers. They are marked as Ex.B-4 series. the notice relating to the auction held on 5.2.1972 was issued on 10.1.1972 to the plaintiff and her husband. The printed auction notice was sent to the plaintiff and her husband. Before that, on 22.12.1971, the auctioneers sent a letter to the plaintiff and her husband that they were instructed by the first defendant to proceed with the adjourned auction and they were taking the necessary steps in the matter. There is ample evidence on record which has been accepted by the courts below that there was due publicity auction sale. D.W.2 spoke about an advertisement of the proposed auction in ‘The Ex.B-6 has been marked to prove the same. The plaintiff issued a notice on 5.2.1972 Ex.A-9 to the first defendant. There was no averment in the said notice that the auction not duly published by the auctioneers or the first defendant. D.W.2 spoke about an advertisement of the proposed auction in ‘The Ex.B-6 has been marked to prove the same. The plaintiff issued a notice on 5.2.1972 Ex.A-9 to the first defendant. There was no averment in the said notice that the auction not duly published by the auctioneers or the first defendant. In fact, in that letter, the defendant was requested to put off the auction on the basis that there was an offer by 4th defendant to receive a lesser amount than what he paid for purchasing the equity redemption in court auction, and that the plaintiff was anxious to sell the property for best price in order to settle all the claims. P.W.1, the husband of the plaintiff deposed that did not know whether there was a publication in ‘The Hindu’. There is nothing in the evidence of P.W.1 which would go to prove that there was no proper publicity of the auction. 7. Though, an allegation is made in the plaint that the property was worth much more what it fetched in the auction and there was an offer by a person to purchase it for Rs.50,000 free from encumbrances, no evidence was produced before the court to substantiate plea. A sale deed dated 28.11.1974 said to relate to an adjacent property was filed as Ex.A in order to prove the value of the property. That sale deed related to a vacant land and not help the plaintiff to show that the suit property was sold for very low price on 5.2.1972. In fact, the details of the suit property are not given anywhere by the plaintiff either in plaint or in the evidence of P.W.1. The area of the land on which the suit building is situated is not given. The only description in the plaint is that the suit property is a ground and premises bearing D.No.7/A, South Gangai Amman Koil Street, Madras does not give the measurements of the property in order to show that it would have much more than what it did in the auction held by the first defendant. The plaintiff has examined any engineer or filed any document to show the value of the building on the property. 8. I have already referred to the fact that the third defendant was not a power attorney agent to manage the suit property as stated in the plaint. The plaintiff has examined any engineer or filed any document to show the value of the building on the property. 8. I have already referred to the fact that the third defendant was not a power attorney agent to manage the suit property as stated in the plaint. The power of attorney confined itself to the business of the plaintiff. Hence, the allegations that the third defendant played a fraud to purchase the property for himself are not made out. Even the deed mortgage in favour of the third defendant dated 20.12.1971 was not filed in the below. For the first time in this Court, an application is filed in C.M.P.No.7014 of 1986 a certified copy of the said mortgage deed as additional evidence. It is vehemently that the third defendant and the 5th defendant did not enter the witness box to deny allegations made by the plaintiff and P.W.1 as her witness. When nothing has been made against the third defendant, there was no necessity for him or his wife to enter the box. At any rate, that will not in any manner affect the validity of the sale held on 5.2.1972. 9. Learned counsel for the appellant contends that the third defendant was in fiduciary capacity and he had purchased the property in the name of his wife, 5th defendant. According to him, the purchase is therefore null and void. This contention is without substance as there is nothing on record to show that the third defendant was in a fiduciary capacity. Excepting the production of the power of attorney marked as Ex.A- nothing to show that the third defendant had any legal relationship with the plaintiff the suit property. On the other hand, the averment in the plaint was that there mortgage in favour of the third defendant on 20.12.1971. Hence, the third defendant be a puisne mortgagee. As a puisne mortgagee, he was .entitled to purchase the property the auction brought under Sec.69 of the Transfer of Property Act by the first defendant was a first mortgagee. Nothing in law prevented the third defendant from making a purchase even assuming that it was he who purchased the property. Learned counsel for the appellant relied on a judgment in Egmore Benefit Society v.Aburupammal, (1943)1 M.L.J. 92 . Nothing in law prevented the third defendant from making a purchase even assuming that it was he who purchased the property. Learned counsel for the appellant relied on a judgment in Egmore Benefit Society v.Aburupammal, (1943)1 M.L.J. 92 . case, the purchase was made by the mortgagee, who exercised the power of sale Sec.69 of the Transfer of Property Act. The court had no hesitation to hold that the purchase was null and void. The principle set out in that case was that a man cannot contract with himself and the same was not abrogated merely because there was a contract between the mortgagor and the mortgagee and the latter could purchase the mortgaged property the auction. It was held that to allow such contract would be to negative the provision on public policy and the enquiry of redemption should not be destroyed except by a decree court or in any manner known to law. That judgment will certainly not apply to the present case as in this case, the private sale is held by the first defendant who is the first mortgagee and the property is not purchased by him. 10. It is next argued that the purchase in the auction was made by the third defendant in name of his wife, the 5th defendant benami for his benefit. The plea of benami is certainly not available now to the plaintiff, in view of the provisions of Benami Transactions (Prohibition) Act, 1988. Hence, the reference to the ruling in Mrs.N.Waoshare v. Pierce & Company, (1960)2 M.L.J. 401 , is irrelevant. That case will have no bearing on the facts the present case. Similarly, a reference to a judgment of the Privy Council in Nagendra Dasai v. Dinanth Mahish, 46 M.L.J. 532, will not help the appellant in any manner In view the findings of facts arrived at by the courts below, the questions raised by learned counsel for the appellant do not arise for consideration. 11. It is next argued by learned counsel that the conditions of auction sale set out in Ex.B are not complied with by the purchaser in the present case. Learned counsel points out one of the conditions in the sale proclamation was that the purchaser shall pay 25% of purchase money immediately after the lot was sold out and pay the balance within 15 from the date of confirmation of the purchase. Learned counsel points out one of the conditions in the sale proclamation was that the purchaser shall pay 25% of purchase money immediately after the lot was sold out and pay the balance within 15 from the date of confirmation of the purchase. Learned counsel points out that the recitals Ex.A-11, the sale deed in favour of the 5th defendant show that the purchaser did comply with the said condition. As per the recitals in the sale deed, the purchaser paid a of Rs.7,000 and Rs.2,500 initially on 24.2.1972 and 30.4.1972 and paid the balance instalments on various dates ending with 25.6.1974. Learned counsel submits that the mortgagee was not entitled to extend time for payment of the purchase price. It is also argued that there is nothing oh record to show that the Directors of the first defendant agreed for extension of time to pay the purchase price. In fact, this is a factual contention and it ought to have been put forward in the trial court and an opportunity should have been given to the first defendant to meet the same. But, no such plea was raised by the plaintiff. For the first time, in the course of arguments, the plea is raised before me. Even in the grounds of appeal in this second appeal, no ground was raised. But, at any rate, the proposition of law is not applicable in view of the fact that Ex.A-11 proves that the Directors agreed for the extension of time. They accepted the payments made in instalments on later dates and executed the sale deed in favour of the 5th defendant. That is sufficient to prove before the court that there was consent on the part of the mortgagee for extension of time. 12. Reliance is placed in this connection on a judgment of a Division Bench of this Court Durai Kannoo v. Saravana Chettiar, (1963)2 M.L.J. 399. It is seen from the facts of that case that the conditions of the sale did not set out that the mortgagee was entitled to extend the time for payment of the purchase money. The condition was absolute in that the purchaser shall pay the amount within the time specified therein. It is seen from the facts of that case that the conditions of the sale did not set out that the mortgagee was entitled to extend the time for payment of the purchase money. The condition was absolute in that the purchaser shall pay the amount within the time specified therein. It is necessary to point out that in present case, there is a specific clause in the auction notice that the time for payment be extended by the Directors of the mortgagee at their discretion. Reverting back to facts of the reported case, when the sale was held, there were only three bidders and appellant before the court was the highest bidder for a sum which was slightly over was due under the mortgage. The appellant, however, did not have sufficient funds with to make the initial deposit of 25% of the purchase price. He could pay only a sum Rs.1,000. Later, he paid Rs.2,000 having a balance of Rs.750 towards the initial deposit. There was default in payment of the remaining 75% of the purchase money. Thereafter, mortgagors’ Advocate issued notices to the mortgagee, the auctioneer and the. purchaser complaining that the property was sold for half of its value and sufficient opportunity was given to bid to the persons who were present at the auction. The mortgagee, while denying the charge expressed his willingness to cancel the sale if the mortgagor could bring offer" Rs.25,000 backed with 25% with advance. Negotiations ensued between the mortgagor mortgagee and the appellant before the court acquiesced in the same. The Bench pointed out that as he did not have sufficient funds, he had to acquiesce in the said negotiations. Thereafter the appellant’s counsel issued a notice to the auctioneers to produce title deeds for inspection and return. The Bench commented on it by pointing out that even before took part in the auction, he ought to have done the same, and the request for inspection title deeds was obviously a move to gain further time. The appellant paid a further amount which was not sufficient to make up the entire consideration. But the auctioneer received without any permission from the mortgagee and there was no consent on the part of mortgagee for extension of time to pay the purchase price. The appellant paid a further amount which was not sufficient to make up the entire consideration. But the auctioneer received without any permission from the mortgagee and there was no consent on the part of mortgagee for extension of time to pay the purchase price. It was therefore held by the court that the mortgagee did not agree to extend the time for payment of balance purchase money and, there was default on the part of the auction purchaser. It was proved at the stage of the trial that the property was worth much more than what it fetched in the auction. On those facts, the Bench while confirming the Judgment of the trial court held that a mortgagee exercising the power of sale though not a trustee for the mortgagor was undoubtedly holding a fiduciary position in regard to any surplus that may remain the discharge of his claim. Therefore, he should act bona fide so as not to imperil interest of the mortgagor. The proposition of law laid down by the court has no application the present case on the facts, to which I have already made a detailed reference. The courts below have found that the first defendant has acted bona fide and he has taken all necessary steps which he ought to have taken to bring the property to sale in accordance with Sec.69 of the Act. 13. The courts below have held that the suit was not maintainable as the plaintiff did have an interest in the equity of redemption on the date of suit. I have already referred the fact that the equity of redemption was purchased in auction by the fourth defendant 23.1.1969. No doubt, the plaintiff did not have any interest therein on 18.2.1972 when the suit was filed. But, the plaintiff made an averment in the plaint fourth defendant had offered to. receive the dues and relinquish his rights as purchaser equity of redemption. Assuming that the plaintiff could stand in the position of an agreement holder, the plaintiff could have maintained the suit. But, at any rate, the plaintiff got of assignment on 24.12.1975 from the 4th defendant under Ex.A-8. That was after was dismissed for default and restored to file. receive the dues and relinquish his rights as purchaser equity of redemption. Assuming that the plaintiff could stand in the position of an agreement holder, the plaintiff could have maintained the suit. But, at any rate, the plaintiff got of assignment on 24.12.1975 from the 4th defendant under Ex.A-8. That was after was dismissed for default and restored to file. Learned counsel for the appellants that the subsequent, event of the plaintiff acquiring interest in equity of redemption be taken into consideration by the court in order to render justice between the parties. have already dealt with the merits of the case as if the plaintiff was entitled to maintain suit. In fact, the courts below have also considered the merits of the case. There was point in stating that the suit was not maintainable. Hence, I hold that the suit maintainable, but the plaintiff has not made out a case for granting reliefs prayed for plaint. 14. In the result, the second appeal fails and it is dismissed with costs. 15. I am informed by learned counsel for the respondents that the 5th defendant has suit for recovery of possession which is pending as O.S.No.2539 of 1981 on the file of Additional Judge, City Civil Court, Madras. By order, in C.M.P:No.7720 of 1982, this stayed the suit under Sec.10 of the Code of Civil Procedure till the disposal of the second appeal, on condition that the appellants should deposit certain amounts in court towards mesne profits. It is stated by learned counsel for the appellants that their client has making the deposits as per the order of this Court. Now that the second appeal is disposed of, it is the duty of the VI Additional Judge to take up the suit for trial and dispose of same. The suit is already 10 years old. The VI Additional Judge, City Civil Court, Madras directed to dispose of the suit on or before 31.12.1991 and send a report to this Court. Appeal dismissed.