Skip to content


Nripendra Kumar Vs. Naumoni Das and ors. - Court Judgment

LegalCrystal Citation
Subject;Property
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 125 of 1951
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Order 34, Rule 5; Transfer of Property Act, 1882 - Sections 82
AppellantNripendra Kumar
RespondentNaumoni Das and ors.
Appellant AdvocateD.N. Medhi and S.C. Das, Advs.
Respondent AdvocateS.M. Lahiri, S. Chaudhuri and M.C. Pathak, Advs.
DispositionPetition dismissed
Prior history
Ram Labhaya, J.
1. This petition of revision is directed against the order dated 3 -7-1951 by which the Subordinate Judge, L. A. D., directed the Munsiff of Barpeta to hold a sale in execution. The petition is by one of the three judgment-debtors. The facts leading to the petition are as follows :
Some 8 lessas of land belonging to the petitioner and his co-judgment-debtors (opposite parties 3 and 4) were mortgaged to one Surendra Narayan Burabhakat. The mortgagee obtained a decree for sal
Excerpt:
.....in the statute. it is not a very plain requirement of good conscience that the right of the mortgagee should give way to the rights of contribution between persons who have taken interests which are subject to the mortgage. medhi been able to rely on any other equity in favour of the petitioner on the basis of which the court may on any equitable ground interfere with the right of the decree-holder to proceed against a part of the mortgage security for 1/3rd of the decretal amount, 14. the order of the learned subordinate judge, therefore, directing the sale of 1/3rd share of the property is perfectly legal and just and it has caused no prejudice to the petitioner. in the circumstances, there would be no point in setting it aside on the basis of the irregularity complained of which..........of this claim petition. on 24-6-1950, the 2/3rd share, sold to opposite party 2, was released. the decree-holder agreed to proceed against the 1/5rd share belonging to the petitioner. on 27-2 1951, the petitioner-judgment-debtor put in a petition of objection urging that the decree-holder is not entitled to recover the mortgage money still due to him by sale only of his 1/3rd share of the property as the mortgage security was indivisible. on 4-4-1951, the learned advocate for the decree-holder stated that the decree-holder did not want to proceed against the two other judgment-debtors and merely wanted to realise 1/3rd of the decretal amount from the 1/3rd share of the property belonging to the petitioner. a written petition to this effect was put in on behalf of the decree-holder on.....
Judgment:

Ram Labhaya, J.

1. This petition of revision is directed against the order dated 3 -7-1951 by which the Subordinate Judge, L. A. D., directed the Munsiff of Barpeta to hold a sale in execution. The petition is by one of the three judgment-debtors. The facts leading to the petition are as follows :

Some 8 lessas of land belonging to the petitioner and his co-judgment-debtors (opposite parties 3 and 4) were mortgaged to one Surendra Narayan Burabhakat. The mortgagee obtained a decree for sale on the basts of his mortgage. After this decree, opposite parties 3 and 4 (co-judgment-debtors) sold their 2/3rd share of the land in dispute to Opposite Party 2. In the course of the execution proceeding, he put in a claim by which he prayed for the release of the 2/3rd share of the mortgaged property sold to him by two out of the three judgment-debtors. The petitioner states that he did not receive any notice of this claim petition. On 24-6-1950, the 2/3rd share, sold to Opposite Party 2, was released. The decree-holder agreed to proceed against the 1/5rd share belonging to the petitioner. On 27-2 1951, the petitioner-judgment-debtor put in a petition of objection urging that the decree-holder is not entitled to recover the mortgage money still due to him by sale only of his 1/3rd share of the property as the mortgage security was indivisible. On 4-4-1951, the learned advocate for the decree-holder stated that the decree-holder did not want to proceed against the two other judgment-debtors and merely wanted to realise 1/3rd of the decretal amount from the 1/3rd share of the property belonging to the petitioner. A written petition to this effect was put in on behalf of the decree-holder on 20-4-1951. On 5-5-1951, the Court ordered the judgment-debtor, to put in his statement in answer to the decree-holder's petition. On 17-5-1951, the next hearing in the case, the judgment-debtor did not put in-any statement and the decree-holder was allowed to take further steps in execution. The order passed on 17th May is very brief. It is as follows :

'Judgment-debtor takes no steps. Decree-holder to take steps on 28-5-1951.'

This order virtually disposes of the judgment-debtor's objection. His position was that execution against 1/3rd share of the property should not be allowed to proceed on certain legal grounds. The decree-holder insisted on realising only 1/3rd share of the mortgage money from the 1/3rd share belonging to the petitioner. In the absence of any answer to decree-holder's claim, the point Of difference between the decree-holder and the petitioner-judgment-debtor was practically disposed of by order dated 17-5-1951. The order of 31-7-1951 was merely a consequential order by which the Munsif was directed to hold the sale.

2. It is contended now on behalf of the petitioner that there has been no proper disposal of the objection put in by the petitioner-judgment-debtor and that in any case, the order of the Court directing sale of 1/3rd share of the property is illegal and therefore the order is not sustainable. So far as the first objection is concerned, the order of 17-5-1951 by which the Court virtually disposed of the point on which the decree holder and the petitioner-judgment-debtor were in issue is no doubt wanting in an express statement that the objection of the petitioner judgment-debtor is disposed of. On the other hand, it is obvious that the objection was in fact disposed of as the decree holder was allowed to take steps in furtherance of the execution proceeding. The irregularity may be regarded as material only if the petitioner-judgment-debtor has been prejudiced on the merits.

3. Mr. Lahiri, the learned counsel for the decree-holder, contends that the order by which the Court directed the execution to proceed is perfectly legal and as such no prejudice has been caused and therefore the irregularity, if any, in the proceeding is not material. He contends, in these circumstances, that there would be no justification for interference on the technical ground that the order of 17-5-1951 is not sufficiently explicit though he agrees that it may be interfered with if it is found that the irregularity complained of caused prejudice to the petitioner by any illegal exercise of jurisdiction by the learned Subordinate Judge.

4. This, I think, is the proper way of looking at the matter. The objection of the judgment-debtor has been disposed of and if the order is correct and no prejudice has been caused to the judgment-debtor, there would be no point in reversing a correct order. The point, therefore, to be considered is whether the decree-holder could proceed against 1/3rd share of the property belonging to the judgment-debtor for recovery of 1/3rd of the decretal amount still due.

5. It seems to me that there is no legal impediment in the way of the decree-holder to recover his unrealised balance of the decretal amount from the 1/3rd share of the petitioner-judgment-debtor. The whole of the mortgage amount is a charge on the entire property and also on every part of it. The mortgagee-therefore may recover the whole or any part of the mortgage money from any portion of the mortgage security. The final decree in a suit for sale must provide, in accordance with the requirements of Order 34, Rule 5, Sub-rule (3), that the mortgaged security or a sufficient part thereof be sold and that the proceeds of the sale be dealt with in manner provided in Sub-rule (3) of Rule 5. The final decree in this case is in the prescribed form and the decree provides explicitly that the property mortgaged or a sufficient part thereof be sold. According to law and under the decree, the decree-holder has the right to apply for sale of a part of the property. The decree is binding on all the judgment-debtors including the petitioner. It is thus not open to the judgment-debtor to urge that an undivided share of the property cannot be sold in execution of the decree for the unrealised balance of the decretal amount.

6. In Perumal Pillai v. Raman Chettiar, 40 Mad 968, it was held by a Full Bench of the Madras High Court that

'a mortgagee voluntarily releasing from the suit a portion of the mortgaged property is not bound to abate a proportionate part of the debt and is entitled to recover the whole of the mortgage amount from any portion of the mortgaged property.'

According to this decision a mortgagee may before suits release any portion of the mortgage security and may recover the whole of the amount from the rest. The position of the decree-holder in the matter of releasing a part of the security would he improved by the decree which provides that the decree-holder may sell the property mortgaged or a sufficient part of it for revising his decretal amount. The petitioner has no grievance against the decree-holder realising only 1/3rd of the de. cretal amount. He does not insist that the whole of the decretal amount should be recovered. His complaint only is that recovery even of the i/3rd of the decretal amount be not made from his 1/3rd share of the property. But this demand has no support either from statute or from authority.

7. The Pull Bench decision of the Madras High Court referred to above was approved by their Lordships of the Privy Council in Shah Ram Chand v. Prabhudayal, A.I.R. 1942 p. c. 60. This Privy Council case has been relied upon by Mr. Medhi. In this case Sir George Rankin, who delivered the judgment, observed as follows :

'The present case has to bo decided upon the law as it stood before the amending Act (20 of 1929) and their Lordships agree with the reasoning of the judgment of Wallis, C. J. delivered on behalf of the Full Bench. They consider that the learned Judges in that case made the right approach to the matter by regarding the rights of redemption and subrogation as rights conferred and defined by the Act. It would indeed be unfortunate if the right of contribution which exists as between mortgagors or persons claiming under the mortgagor were found to have been inadequately expressed in the statute. 'That right arises to them inter se because they cannot require the mortgagee to have recourse to their several properties equally or rateably, the whole debt being charged on every part of the mortgaged property.' But it may be doubted whether it gives rise to any equity in them which takes away the right of a mortgagee to diminish his own security except upon condition of abating part of the debt to say nothing to the more stringent penalty of exposing himself to piecemeal redemption. It is not a very plain requirement of good conscience that the right of the mortgagee should give way to the rights of contribution between persons who have taken interests which are subject to the mortgage.'

8. As regards the effect of the release of a part of the mortgaged property by the mortgagee, their Lordships held that the release of a part of the mortgaged property by the mortgagee does not take away as regards that part the liability to contribute which Section 82, T. P. Act, imposes upon the different parts. Their Lordships recognised that under Section 60, T. P. Act, the integrity of a mortgage is not broken except where the mortgagee has purchased or otherwise acquired as proprietor a certain portion of the property mortgaged. A release of a portion of a mortgage security on payment or otherwise would not, therefore, break up the integrity of the mortgage. Therefore where a mortgagee has allowed the owner of one part of the mortgaged property to redeem his part, any separate owner of a portion of what remains cannot redeem his part on payment of his proportion of the debt. Even in such a case, according to the view enunciated in this case, the unreleased part of the property can be redeemed only on payment of the full amount though the owners of the released part would be liable to contribute under Section 82, T. P. Act. The view enunciated by their Lordships of the Privy Council and particularly the words in inverted commas above which are mine afford a complete answer to Mr. Media's contention. In any case on the strength of this Privy Council decision, which has been relied upon by him, it cannot be said that it is open to a mortgagor, who owns only a part of the mortgage security, to insist that the mortgagee shall bring the entire propert, to sale. If the action of the mortgagee results in placing any extra burden on him which he should not be made to bear be has the rights to sue for contribution under Section 82.

9. The release of 2/3rd share of the property, in this case, was agreed to by the decree-holder in a proceeding of which the petitioner had no notice. He is not bound, therefore, by the order of release of the 2/3rd share. But it is only if that release causes him any loss that he should not be made to suffer that he has the right to ask for contribution from the co-mortgagors and if notwithstanding the fact that only 1/3rd of the mortgage money is being recovered from him he can establish that he has got a right in law to make other co-mortgagors contribute he would be at liberty to sue them. The effect of a release of a portion of the mortgaged property would be the same whether the release comes before suit or after the decree in a suit for sale.

10. Other authorities relied on by the learned counsel for the petitioner are distinguishable. In Mirzayadalli Beg v. Tukaram, 48 cal. 22 (p. c.) it was held that a suit by a transferee of a part of the equity of redemption was not affected by a previous decree for foreclosure which was obtained in a suit to which the transferee was not a party. The question in the case was whether the transferees were entitled to redeem the whole of the mortgaged property or only the field conveyed to them and it was held that the transferees could redeem the entire property mortgaged.

11. In Giddayya v. Jagannatha, Rau, 21 Mad. 363, a purchaser at a court sale of one of the two properties mortgaged sued to redeem the house purchased by him. The suit was dismissed on the ground that partial redemption could not be allowed.

12. In Huthasanan Nambudri v. Parameswaran Nambudri, 22 Mad. 209, the purchaser of one item of property mortgaged was allowed to redeem the whole in consonance with the requirements of Section 60, T. P. Act.

13. These authorities have no application to the facts of the case. The question now before me did not arise in them. They do not support the contention that a decree-holder who has got a decree for sale on the basis of his mortgage cannot release a portion of the mortgaged security with or without realising any portion of the decretal amount or that he cannot be permitted to proceed against a portion of the property belonging to one of the several mortgagors for the whole or part of his mortgage money. According to the provisions concerned in Order 34, Rule 5, the right to proceed against a sufficient part of the property has got to be reserved to the decree-holder. This has been reserved to the decree-holder in his decree passed against the petitioner-mortgagor. The petitioner is as much bound by the decree as the decree-holder. Execution, therefore, against a portion of the property for 1/3rd of the mortgage money cannot be denied to him. The view is fully supported by authority as shown above. No question of marshalling of securities arises in the case; nor has Mr. Medhi been able to rely on any other equity in favour of the petitioner on the basis of which the Court may on any equitable ground interfere with the right of the decree-holder to proceed against a part of the mortgage security for 1/3rd of the decretal amount,

14. The order of the learned Subordinate Judge, therefore, directing the sale of 1/3rd share of the property is perfectly legal and just and it has caused no prejudice to the petitioner. In the circumstances, there would be no point in setting it aside on the basis of the irregularity complained of which cannot be regarded as material in the absence of any prejudice to the petitioner. The result is that the petition is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //