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Nilo Pandurang Vs. Rama Patloji and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom35
AppellantNilo Pandurang
RespondentRama Patloji and ors.
Excerpt:
.....against the auction-purchaser, whether as plaintiff or defendant. 'in determining the claimant's right in such a suit (alluding to the suit which may be brought to assert his right under section 246 of the civil procedure code of 1859 by the unsuccessful party in the summary proceedings), the court disposes finally of all rights which have combined to make it up. 381 carries the above view of section 246 a step further by holding that the unsuccessful party in the summary proceedings cannot assert his right even as a defendant after the expiration of the year. in our opinion, having failed to prove his right within that time, he is precluded from asserting it by an order which has become final. ' 3. the above conclusions as to the proper interpretation and application of section 246 of..........direct that the plaintiff be put into possession of the property in question on his paying to the defendants the sum paid by them to the' mortgagee to obtain the release of his mortgage rights. parties to pay their own costs throughout.
Judgment:

Charles Sargent, C.J.

1. In this case the plaintiff was the purchaser, on 18th October, 1873, at auction sale of the land in question in execution of a decree obtained against one Bala bin Apa. The defendants were the purchasers from Bala bin Apa on 9th March, 1872, and on the occasion of the property being attached by the ' judgment-debtors in execution of their decree, entered an objection under Section 246 of the Code of Civil Procedure of 1859 , which was disallowed on the 23rd December, 1872. It is not disputed that when the attachment was placed on the property it had been already mortgaged in 1870 by Bala, and was then in the possession of the mortgagee. On the 2nd June, 1873, defend-ants paid off the mortgage, and obtained a release from, the mortgagee of all claim upon the land and a receipt for the mortgage-debt, and were put into possession by the mortgaged. Upon the plaintiff's endeavouring to obtain possession of the land as the auction purchaser, he was obstructed by the defendants, and the Subordinate Judge, after inquiring into the matter, made a summary order in favour of the latter. The, plaintiff has now brought this suit, under Section 335 of the Code of Civil Procedure (XIV of 1882), to establish his right to the present possession of the property.

2. Now, the authorities show that where an unsuccessful claimant, under Section 246 of the Code of Civil Procedure of 1859 or the corresponding section of the present Civil Procedure Code, fails to assert his title to the property within one year from the date of the order in the summary proceedings, he is precluded from asserting it against the auction-purchaser, whether as plaintiff or defendant. It will be Sufficient to refer to the cases of Ranga Vithal v. Rikhuadas bin Rayachand 11 Bom. H.C. R. 178; Krishnaji Vithal v. Bhaskar Rangnath I.L.R. 4 Bom. 617; and Badri Prasad v. Muhqmmad Yusuf I.L.R. All. 381. In the first of these cases West, J., says: 'In determining the claimant's right in such a suit (alluding to the suit which may be brought to assert his right under Section 246 of the Civil Procedure Code of 1859 by the unsuccessful party in the summary proceedings), the Court disposes finally of all rights which have combined to make it up. All the claimant's rights, and, therefore, every individual right, being thus the proper subject of inquiry, the limitation clause shuts out the assertion of any right at all after the lapse of one year.' The Full Bench decision in Badri Prasad v. Muhammad Yusuf I.L.R. All. 381 carries the above view of Section 246 a step further by holding that the unsuccessful party in the summary proceedings cannot assert his right even as a defendant after the expiration of the year., The Court says: 'The argument that limitation does not apply to a defendant is not in our opinion pertinent. The question is whether or not the defendant is not bound by an order which he did not contest within, the time allowed him. In our opinion, having failed to prove his right within that time, he is precluded from asserting it by an order which has become final.'

3. The above conclusions as to the proper interpretation and application of Section 246 of the Code, of 1859 are still more clearly deducible from the language of the corresponding Sections 278 to 283 of the Codes of 1877 and 1882 The last section says: 'The party against whom an order under Sections 280, 281 and 282 is passed may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit (if any) the order shall be conclusive.' In the present suit, therefore, the plaintiff is right in his contention that the defendants cannot rest their right to the possession on their purchase of 9th March, '1872, that title not having been established by a suit within one year from the making of the order of 23rd December, 1872.

4. The defendants, however, have since the order of the 23rd December, 1872, paid off the mortgage, and the question arises how far they can avail themselves of that circumstance in protecting their possession. Now, it is true the defendants have not taken a transfer of the mortgages either to themselves or a trustee, and that the mortgagee simply dealt with them as the owners of the equity of redemption, and on payment of the mortgage-debt released to them all claims on the property by sale. But although the order of 23rd December, 1872, is conclusive as against the defendants' claim to the quity of redemption, it would be contrary to equity, justice, and good conscience were the Court to assist the plaintiff in obtaining possession without paying the defendants what they have paid to the mortgagee to free the property from the incumbrance and to recover possession of it from the mortgagee. We must, therefore, reverse the decree of the Court below, and direct that the plaintiff be put into possession of the property in question on his paying to the defendants the sum paid by them to the' mortgagee to obtain the release of his mortgage rights. Parties to pay their own costs throughout.


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