Calcutta High Court
Nanack Chand And Anr. vs Teluckdye Koer And Ors. on 8 April, 1879
Equivalent citations: (1880)ILR 5CAL265
JUDGMENT Richard Garth, C.J.
1. In this case both the plaintiffs and the defendants appear to have taken mortgage-bonds from the same person, pledging the same property on the same day. Both subsequently obtained decrees upon those bonds against the mortgagor.
2. The defendants, it is found by the Court below, got their decree first, and under that decree they bought the right, title, and interest of the mortgagor in the mortgaged property, and obtained possession of it.
3. The plaintiffs afterwards, under their decree put up for sale and bought the right, title, and interest of the mortgagor; and they now bring this suit for the purpose of recovering the possession of the property from the defendants.
4. This suit being, therefore, only for possession, on the strength of that purchase, the question is, whether the plaintiffs can prove a better right to such possession than the defendants.
5. The Subordinate Judge has decided that the defendants' right is preferable, because their purchase of the mortgagor's interest was prior in date, and he accordingly dismissed the plaintiffs' suit.
6. It is now contended on appeal, that both the lower Courts should have tried not only the question whose purchase was first, but also whose mortgage was first.
7. But that question, we think, does not arise in this suit. The right to the possession of the property cannot depend upon which of the mortgages was first.
8. The defendants, when they purchased the interest of the mortgagor, obtained the present right to possession, although in equity they might only have acquired it as trustees for the mortgagor and subject to his right to redeem the property: see Kamini Debi v. Ram Lochan Sirkar (5 B.L.R., O.C., 451), Brajanath Kundu Chowdhry v. Section M. Gobindmani Dasi (4 B.L.R., O.C., 83).
9. The plaintiffs may, if they please, raise the question of the priority of their mortgage in a suit properly framed for the purpose, but in this suit that question has not been, and could not properly have been, tried.
10. The appeal must be dismissed with costs.