Patna High Court
Abdul Gafoor vs Sagun Choudhary And Ors. on 16 February, 1948
Equivalent citations: AIR1952PAT321, AIR 1952 PATNA 321
JUDGMENT Narayan, J.
1. The suit out of which this :second appeal arises was a suit to enforce a simple mortgage bond dated 18-8-1934 which had been executed by the defts. first party in favour of the deft, third party & which was later assigned by the deft, third party to the. plff. The properties mortgaged under this bond are seven annas & odd share in a particular tauzi & three bighas of kast land. The deft, second party was the prior mortgagee of four annas share out of this tauzi & of one bigha of kasht land. He had instituted a suit on the foot of his mortgage, & in execution of his decree purchased the mortgaged property himself. To that suit the subsequent mortgagee was not made a party & on 2-2-1939 the deft, second party as the auction purchaser was given possession over the property sold in execution of his decree. The present suit was instituted by the plff. on 2-7-1943, & the plff's contention in this suit is that he is entitled to redeem the mortgage of the deft, second party & after redemption to put the properties to sale. The suit was contested by the deft, second party whose contention, as appears from the judgment of the trial Court, was that the mortgage bond propounded by the plff., was not a genuine document & that if it be genuine he was entitled to redeem the plff.
2. The Court of first instance, the Munsif of Darbhanga, held that the deft, second party had a right to redeem the subsequent mortgage of the plff. & he ordered that the plff. would at first put to sale that portion of the mortgaged property which was outside the mortgage of the deft, second party & that if the sale proceeds of that property were not sufficient to satisfy his decree, he would, after depositing the amount payable to the deft. second party "under this mortgage & purchase", put the remaining property to sale, & that only in case the deft, second party as the purchaser of the equity of redemption does not redeem him.
3. An appeal was preferred by the plff, against this decision of the learned Munsif, & it was directed only against this decision of the learned Munsif, & it was directed only against the order of the learned Munsif allowing redemption by the deft, second party. The appeal was allowed in part by the fourth Additional Subordinate Judge of Darbhanga, who set aside that portion of the order of the learned Munsif by which the deft, second party had been given the right to redeem the plff. The order portion of the learned Subordinate Judge shows that the defts. first party alone were directed to pay off the decretal amount within three months from the date of his order failing which the plff. could sell such portion of the mortgaged property as could satisfy his mortgage decree.
4. This second appeal has been preferred by the deft, second party whose contention is that the decision of the trial Court should be restored.
5. The only point which we have to determine in this appeal is whether the deft, second party can be regarded as a purchaser of the equity of redemption & can therefore be allowed to redeem the plff's mortgage. This gives rise to the question as to what is the position of a prior mortgagee who without im-pleading the subsequent mortgagee has purchased the property mortgaged to him in execution of his decree, & whether he is entitled to redeem the subsequent mortgagee after the sale in execution of his decree. There was a lot of discussion at the Bar over this question, but to my mind there should be no difficulty now in deciding this point. If the auction purchaser in execution of a decree obtained on the foot of a prior mortgage without implead-ing the subsequent mortgagee acquires at least the rights of the mortgagor, who was a party to his action, then certainly he has got the right to redeem the puisne mortgagee. There can be no doubt that the auction-purchaser in execution of the decree based on the prior mortgage occupies the double capacity of a first mortgagee as well as the owner of the equity of redemption, & while in his first capacity he can use the prior mortgage as a shield against the puisne mortgagee, in his second capacity he can redeem all subsequent mortgages. Such an opinion was expressed by this Court in the case of 'Mt. Dhanwanti v. Hargovind Prasad', 3 Pat 435, & 'Kulwant Sahay, J. in this case relied on the view which had been expressed by Sir Rashbehari Ghosh in his famous book on mortgage. But it can be argued that whatever has been observed in this connection by Kulwant Sahay, J. should be regarded as obiter dictum inasmuch as the decision was also made on the basis that the rights put forward in that case had been determined by a decree which was binding on both the parties. But in 'Mt. Azizunnissa v. Komal Singh', 9 Pat 930, it was distinctly pointed out that the purchaser of the mortgaged properties in execution of a mortgage decree acquires not only the interest of the mortgagee but also the equity of redemption of the mortgagor & that he is entitled to redeem other mortgages on the same property created by the mortgagor. The view taken in this case & certain cases of the Allahabad High Court is amply supported by the Privy Council decision in 'Sukhi v. Gulam Safdar Khan', 48 IA 465, in which their Lordships held that the owner of a property who is in the rights of a first mortgagee & of the original mortgagor acquired at a sale under the first mortgage is entitled at the suit of a subsequent mortgagee, who is not bound by the sale or the decree on which it proceeded, to set up the first mortgage as a shield. The use of the word 'shield' by their Lordships in this case has got great significance, & it indicates that the first mortgagee has a right to redeem the second mortgage in such circumstance & that the other advantage he can have is that because of his purchase in execution of the decree based on the prior mortgage he can use the prior mortgage as a shield against the subsequent mortgagee. Their Lordships in this case approved of the general principle as it had been enunciated by the High Court. The High Court had observed as follows :
"The plff. is a puisne mortgagee seeking to enforce her mortgage, the prior mortgagee in his suit having failed to make her a party, it is the duty of the Court to give the plff. an opportunity of occupying the position which she would have occupied, if she had been a party to the former suit,"
After quoting this observation of the High Ct. their Lordships of the Judicial Committee remarked that the original mortgagee having brought the estate at the sale in the suit was the owner of both the mortgage & the equity of redemption merged in one by the decree of the Court. This is precisely the point before us. As soon as it is held that the deft, second party has got a double capacity, it follows as a corollary that he has a right to redeem the puisne mortgagee. It is true that the puisne mortgagee has also got the right to redeem the prior mortgage, but this right has a corresponding obligation too, & the puisne mortgagee cannot prevent the prior mortgagee, who has stepped into the shoes of the mortgagor, from redeeming his own mortgage. The lien of the puisne mortgagee subsists because he was not made a party to the suit of the prior mortgagee, & this position was not disputed before us by Mr. Jha, who appeared for the respondents, & if the lien of the puisne mortgagee subsists, it follows that the purchaser of the equity of redemption has the right to redeem him This question has been discussed at very great length by the Full Bench of the Allahabad High Court in the case of 'Ram Sanehi Lal v. Janki Prasad', 53 All 1023. One of the questions that had been referred to the Full Bench was whether an auction-purchaser in execution of a decree obtained on a prior mortgage without impleading the subsequent mortgagee acquires at least the rights of the mortgagor, who was a party, including his rights of possession in cases where both the mortgages were simple. The answer of the Full Bench was in the affirmative. The following, observation of his Lordship the Chief Justice appears to be important for our purposes in this case :
"I adhere to the opinion expressed by me in 'Nannu Mal v. Ram Chander', 53 All 334 at p. 352; 'No doubt the decree on the previous mortgage is not binding on the subsequent mortgagees, who had not been impleaded, to this extent that their rights under their mortgage have not been extinguished, as would have been the case if they had been impleaded & had not redeemed the prior mortgage. But it is not correct to say that the previous proceedings are totally a nullity. As between the prior mortgagee & the subsequent mortgagees the previous proceedings are ineffective, but that does not imply that the mortgagor's interest could not have been sold by the prior mortgagee behind the back of the subsequent mortgagees but subject to their subsequent mortgage. The mortgagor's interest in the property validly passed to the auction purchasers, no matter whether the subsequent mortgagees were parties to the suit or not. The auction purchasers cannot be in a worse position than a private transferee from the mortgagor."
6. In my opinion, this observation of his Lordship the Chief Justice sets at rest the controversy which has been raised before us, & it has not been shown to us that this Court has ever taken any contrary view. It is inconceivable that the auction-purchaser in execution of the decree passed on the prior mortgage-would be in a worse position than a private transferee from the mortgagor, & if his position is not worse than that of a private transferee from the mortgagor, then he has certainly the right to redeem the subsequent mortgages. Mr. Jha, who appeared for the respondents,, relied on two cases of this Court in support of his contention that the deft, second party had : no right to redeem the plff's mortgage, & those cases are 'Mt. Sheoratan Kuer v. Kamta Prasad', 11 Pat 415 and 'Ganga Prasad v. Mt. Ganeshi Kuer', 22 Pat 761. The facts of both these cases are clearly distinguishable from the facts of the case before us.
7. In 'Sheoratan Kuer's case', 11 Pat 415, the plff. was the assignee from a subsequent mortgagee who had not been impleaded in the action on the foot of the prior mortgage until a certain date & from whom the assignment had been taken before he could be impleaded in the action. The main question which arose was whether the assignment was affected by the doctrine of lis pendens, & this question was answered in the negative. It was held that the assignee was entitled to redeem the prior mortgage, but that the prior mortgagee had no right "to redeem over" against him. I do not think it can be asserted that the view taken in this case in any way conflicts with the view which I have taken in the present case, or which was taken by the Full Bench of the Allahabad High Court. On the other hand. Wort, J. referred to the Privy Council case of Sukhi v. Gulam Safdar Khan & observed that the law is now as it was prior to the passing of the T. P. Act & that the deft, in the case before him could use his prior mortgage as a shield against the subsequent mortgagee with the result that the plff. in the action must redeem his mortgage before he could bring the property to sale.
8. The decision that was arrived at in the case of 'Ganga Prasad v. Mt. Ganeshi Kuer', 22 Pat 761, was that where an equity of redemption is wholly or in part unrepresented, the sale in execution of a decree on such mortgage suit cannot affect the right of the owner of the equity of redemption who is in possession either on a transfer from the mortgagor or as an auction purchaser in the sale in execution of a decree against the mortgagor, & that he cannot be forced to redeem. In order to understand the nature of the decision arrived at in this case, on which so much reliance was placed by Mr. Jha, I should like to quote the following passage from the judgment of Manohar Lall, J. :
"The apparently contradictory decisions may be reconciled if it is kept in view that where an equity of redemption is wholly or in part unrepresented the sale in execution of a decree on such mortgage suit cannot affect the rights of the owner of the equity of redemption who is in possession either on a transfer from the mortgagor or as an auction-purchaser in the sale in execution of a decree against the mortgagor. But where all that had been left out is a simple encumbrancer who at the date of the mortgage suit was not in, or entitled to, possession then only the right of redemption must be given to him. Where an auction-purchaser in such a mortgage decree sale is the plff & has failed to obtain possession no difficulty in law or in equity can ever arise because it is he who is to blame himself if he has slept over his rights for a long time & has not enforced his possession on the foot of such a sale. He cannot complain if his suit for possession is converted into a suit for sale on the foot of the mortgage bond."
I fail to understand how this decision can be of any help to the respondents in this case.
9. This appeal is, therefore, fit to succeed & is allowed with costs. The judgment & the decree of the lower appellate Court are set aside & that of the trial Court restored.
Agarwala, C.J.
10. I agree.