Balli Singh v. Bindeswari Tewari

Balli Singh v. Bindeswari Tewari

(High Court Of Judicature At Patna)

Second Civil Appeal No. 491 of 1912 | 07-04-1916

1. It is necessary in this appeal to state a few facts in order to make clear the question which we have to decide. In February 1900 the ancestor of the two ladies, impleaded in the present suit as defendants Nos. 1 and 2, mortgaged to the plaintiff, Bindeswari Tewari, a 2-annas share in Mauza Pepra, a 2-annas 8-pies share in Mauza Jalalpnr, a 2-annas 8-pies share in Mauza Inglish and a garden in Arrah. The plaintiff brought a suit against the two ladies upon the mortgage and obtained a decree, in execution of which he purchased the mortgaged property and obtained formal delivery of possession in 1906, but in the meantime the mortgaged property, except the garden at Arrah, had been sold for arrears of revenue and had been purchased by defendants Nos. 3 to 12. The present suit was instituted in November 1907. The plaintiff's case was that the revenue sale had been procured by fraud and was null and void as against him. That point has been held against him and no question now arises as to it. The revenue sale must be taken to have transferred the property to defendants Nos. 3 to 12. The plaintiff further contended that if the revenue sale was valid, defendants Nos. 3 to 12 had purchased the shares in the villages subject to the plaintiff's mortgage. It is conceded on all hands that in the circumstances the purchase at the revenue sale was subject to the plaintiff's mortgage. The plaintiff claimed in his plaint possession of the shares in the three villages as against the purchasers at the revenue sale. Plaintiff compromised with the defendants other than Nos. 3, 6 and 9, and has obtained a decree against them which cannot now be questioned. Defendant No. 6 in the course of the suit transferred all his interest to defendant No. 9, so that we are concerned now only with the plaintiff and defendants Nos. 3 and 9. It appears that at the revenue sale a much larger share in each of the villages was put up to auction than was covered by the mortgage. It is unnecessary to go into all the details. It is sufficient to state with regard to the purchase that defendant No. 3 purchased a 3-pies 15-krants share in Pepra subject to the plaintiff's mortgage, and defendant No. 9 has become the proprietor of a 9-pies share in Pepra and 1-anna share in Jalalpur subject to the plaintiff's mortgage. The two defendant with whom we are now concerned conceded in this Court at all events that the property was liable for its proportionate share of the amount due on the mortgage. The amount chargeable against the shares of these two defendants was ascertained by the first Court and the calculation must be taken to be correct. The only alteration made in the first Court's decree by the lower Appellate Court was the addition of interest to the amounts found chargeable against the different shares. Both Courts below have given the plaintiff a decree for possession in case the defendants fail to pay within six months their proportion of the sum due on the mortgage. In second appeal it is contended that the plaintiff is not entitled to a decree for possession, but is only entitled to a decree for sale of the property in case the defendants do not redeem the property purchased by them by payment of their proportionate amount of the mortgage money. On behalf of the plaintiff-respondent it is vigorously contended that in a case of this kind the plaintiff is entitled to a decree for khas possession, and we were referred to a number of cases on the subject. In all the cases referred to, it will be found that the person occupying the position of the plaintiff in the present suit was entitled to possession of the mortgaged property at the date of the suit. I take a common instance. A makes a simple mortgage in favour of B and subsequently a similar mortgage in favour of C.B. sues A on the mortgage without impleading G. He obtains a decree, brings the property to sale and purchases it himself. By that purchase he acquires the right to possession of the mortgaged property which up to that time had been enjoyed by the mortgagor. C, not having been made a party to the suit brought by B, had no opportunity of redeeming 3, and in a subsequent suit brought by B to enforce possession of the property, C must be given an opportunity of redeeming B, but if he fails to redeem, B will have a decree for possession of the property, not for sale of the property. The reason why he gets a decree for possession of property is that at the date of the suit he was entitled to possession of the property against all the world. In the present case the suit brought by the plaintiff on his mortgage was brought against the original mortgagors, but the interest of the original mortgagors in the villages with which we are now concerned had at that time passed at the revenue sale to defendants Nos. 3 to 12, so that the purchase at the execution sale of the rights of the mortgagor did not give the present plaintiff a right to possession of the property against the purchasers at the revenue sale. Consequently, if defendants Nos. 3 and 9 fail to redeem, the plaintiff is not entitled to a decree for possession, but he is entitled to the ordinary remedy of a mortgagee, namely, to have the mortgaged property put up for sale. The result is that the appeal must be allowed in part and the decree of the lower Appellate Court varying the decree of the first Court must itself be varied. The suit will stand decreed against defendants Nos. 3 and 9 with proportionate costs in the way indicated in the Subordinate Judge's judgment as modified by the judgment of the District Judge, that is, defendant No. 3 shall pay to the plaintiff Rs. 152 with interest at the rate of 6 per cent, per annum from the date of the Subordinate Judge's decree up to the date of payment, in order to redeem his 3-pies 15-kranls share in Pepra and his 5-pies share in Jalalpur. If the amount is not paid within six months from this date, the two shares just mentioned will be sold. Similarly defendant No. 9 shall pay Rs. 394-3-0 with interest thereon at the rate of 6 per cent, per annum from the date of the Subordinate Judge's decree to the date of payment, in order to redeem his 9-pies share in Pepra and his 1-anna share in Jalalpur. If he fails to pay the amount within six months from this date, the shares just mentioned will be put up for sale. The ordinary decree nisi for sale will be prepared. There will be no order as to costs in this appeal.

Advocate List
Bench
  • Hon'ble Justice&nbsp
  • Sir Edward Maynerd Des Champs Chamier
  • Hon'ble Justice&nbsp
  • Kt C.J
  • Hon'ble Justice&nbsp
  • Jwala Prasad
Eq Citations
  • 35 IND. CAS. 532
  • LQ/PatHC/1916/34
Head Note

A. Debt, Financial and Monetary Laws — Mortgage — Possession of mortgaged property — Plaintiff mortgagee obtaining decree for sale of mortgaged property in execution of decree obtained against mortgagors — Held, plaintiff mortgagee would not be entitled to decree for possession of mortgaged property against purchasers at revenue sale — Plaintiff mortgagee would be entitled to decree for sale of mortgaged property — Equity (Para 1) B. Debt, Financial and Monetary Laws — Mortgage — Possession of mortgaged property — Plaintiff mortgagee obtaining decree for sale of mortgaged property in execution of decree obtained against mortgagors — Held, plaintiff mortgagee would not be entitled to decree for possession of mortgaged property against purchasers at revenue sale — Plaintiff mortgagee would be entitled to decree for sale of mortgaged property — Equity