Indian Kanoon - Search engine for Indian Law

as the defendant's title related back to a date anterior to the first mortgagee's suit there was no alienation pendants lite and the doctrine does not apply.

40. The prior mortgagee having then no rights as against the puisne mortgagee on his decree and sale, and his rights under his mortgage being barred by limitation, he had no rights remaining.

41. I will now refer to the authorities on which reliance has been placed. As to Hargu v. Gobind (1897) 19 All 641 and Madan Bhagwan (1899) 21 All 235 (F B), which the defendant-appellants urged governed the present case, it was held in the former that where the plaintiff asked only for possession he could not be given possession, and in the latter, following the former, that the former case was also authority for the proposition that where the only relief asked for was possession, not only could unqualified possession not be given but even a decree for possession conditional on failure of the defendant to redeem could not be given.

42. In Madan v. Bhagwan (1899) 21 All 235 (F B), interpreting the earlier Full Bench, the learned Judges say:

The Full Bench did distinctly indicate their opinion that, in a suit for ejectment such as the present, a decree for possession with a conditional right to the defendant should not be passed.

43. Neither of the cases appear to me to be authority for the proposition that in a properly framed suit asking for a conditional decree the relief could not be given.

44. I find support for this view of the limited scope of these decisions in the very brief references to them, and the nature of those references, in Ram Prasad v. Bhikhari (1904) 26 All 464, Mulla Veetil v. Korambath (1911) 21 M. LJ 213, Babu Lal v. Jalakia AIR 1917 All 359; by the absence of all reference to them in Hukum Singh v. Lallanji AIR 1921 All 339; and by the distinguishing of cases in which only possession was claimed in Har Prasad v. Dal Mardan (1905) 32 Cal 891, in all of which cases the relief or, at any rate, the principal reliefs asked for was for possession conditional on failure to discharge the plaintiff's mortgage. Only in one such case were these Full Benches relied on to support the finding that even where a conditional decree was asked for, such decree could not be given. That case is Ram Narayan v. Somi AIR 1923 All 449 in which the learned Judges held that the case before them, where one of the reliefs asked for was a conditional decree, was "on all fours" with the case in Madan v. Bhagwan (1899) 21 All 235 (F B). In that view of the two cases I do not find myself able to agree. The reliefs asked for were wholly different. The irrelevancy of these two Allahabad Full Bench decisions to the case before us, where a conditional decree is asked for, appears to me then clear. I have referred to them so fully only because we were much pressed with them on behalf of the defendant-appellants.

45. Ram Prasad v. Bhikhari (1904) 26 All 464, to which we were referred for the plaintiff-respondent, is clearly distinguishable. There a mortgagee had only impleaded in his suit the holder of a simple money decree who had attached the property. He could not have impleaded the auction-purchaser under that decree for the sale did not take place till after the decree for sale under the mortgage decree.

46. In Ram Prasad v. Dal Mardan (1905) 32 Cal 891, among other reliefs, plaintiff asked for a conditional decree for possession and was given that relief by the lower appellate Court. Brett, J., and Mitra, J., agreed in dismissing the appeal. Rampini J., would have allowed it. I am unable to appreciate fully the reasoning of Mitra, J., on the main question;but Rampini, J., would apparently have agreed with Brett, J., in dismissing the appeal, but for the fact that he held the suit to be barred by limitation.

48. In Babu Lal v. Jalakia (1911) 21 M. LJ 213 it was held by Piggott, J., and Lindsay, J., that the plaintiff was entitled to a conditional decree in default of redemption by the puisne mortgagee. This is the case with which we have been most strongly pressed for the plaintiffs-respondents. In this also the plea of limitation was raised by the defendant. Piggott, J., held that the suit was not one for foreclosure or sale; that the prior mortgage had been extinguished; that the suit was brought on a different cause of action, i.e., the failure to get possession after purchase;. that as the suit was not on the mortgage, there was no bar of limitation. Lindsay, J., held that it was impossible to ignore the sales that both plaintiff and defendant had "imperfect titles," that the only effect of not impleading the puisne mortgagee was to preserve his right of redemption. I have already, in stating my own view at the commencement of this judgment, expressed my opinion on most of these points If the suit was brought on the plaintiff's purchase, it ought to have been dismissed forthwith in view of the fact that the puisne mortgagee was entitled to plead that he could not be in any way affected by the suit, decree or sale brought and obtained without impleading him. It was impossible of course to ignore the Bale under the decree of the puisne mortgage which had been arrived at by due process of law, but it was not only possible but incumbent on the Court to ignore as against the puisne mortgagee the sale under the plaintiff's decree which had only been reached, in the words of Piggott, J. by "an initial departure" (by the plaintiff) "from the plain course prescribed by the law." In view of this finding of Piggott, J., that the legal complications "had been brought about by this initial departure" by the plaintiff, I am unable, with the greatest respect for so able a Judge, to appreciate how "it was the duty of the Court simply to work out the equities" merely because it now had both parties before it.