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Tukaram BIn Atmaram Vs. Ramchandra BIn Budharam - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1877)ILR1Bom314
AppellantTukaram BIn Atmaram
RespondentRamchandra BIn Budharam
Excerpt:
.....certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of lack of jurisdiction. - it was incumbent on the part of a money judgment-creditor, like the plaintiff, who was causing lands to be sold under his money-decree, to let it be known to persons bidding for the right, title, and interest of the judgment-debtor in the land that he, the judgment-creditor, held a mortgage on the same land, and intended to enforce it, and not to keep the mortgage, like a stone in his sleeve, in the dark until after the land had been sold to persons ignorant of the existence of such mortgage......further, the plaintiff obtained, on the 20th february 1874, in a suit instituted in 1873, a money-decree against the mortgagors (but not in respect of the mortgage) for rs. 100, and caused the mortgaged property to be attached and sold by the court. the defendant (being in possession as a mortgagee of 1873) purchased the mortgaged premises for rs. 86 at that sale on the 17th september 1874, and holds an unregistered certificate of sale of the 29th october 1874. the plaintiff alleges that in 1874 he commenced a suit (to which the defendant was not a party) on the mortgage, and obtained against the mortgagors a decree for possession, and, in endeavouring to enforce it, he was obstructed by the defendant on the 15th january 1875. the date of that decree for possession does not appear.....
Judgment:

Michael Westropp, C.J.

1. The plaintiff claims under a mortgage of the 27th November 1871 for Rs. 50, which was unregistered and unaccompanied by possession. The defendant claims under a mortgage of the 17th March 1873 for Rs. 150, which was registered, and which was accompanied by possession. The plaintiff has not alleged that the defendant, when he took his mortgage with possession, had notice of the plaintiff's unregistered mortgage; and the plaintiff not being in possession, and his mortgage being unregistered, there cannot be any presumption that the defendant had any such notice. Further, the plaintiff obtained, on the 20th February 1874, in a suit instituted in 1873, a money-decree against the mortgagors (but not in respect of the mortgage) for Rs. 100, and caused the mortgaged property to be attached and sold by the Court. The defendant (being in possession as a mortgagee of 1873) purchased the mortgaged premises for Rs. 86 at that sale on the 17th September 1874, and holds an unregistered certificate of sale of the 29th October 1874. The plaintiff alleges that in 1874 he commenced a suit (to which the defendant was not a party) on the mortgage, and obtained against the mortgagors a decree for possession, and, in endeavouring to enforce it, he was obstructed by the defendant on the 15th January 1875. The date of that decree for possession does not appear in evidence. If it were subsequent to the sale to the defendant, that decree was valueless, as neither the title to, nor the possession of, the land was then vested in the mortgagors. Independently, however, of that circumstance, and whatever may have been the date of the decree, the plaintiff does not allege that the defendant had any notice of the plaintiff's mortgage when the plaintiff caused the Court sale to be made on the 17th September 1874 under his money-decree, or that the sale was made subject to the plaintiff's mortgage. It was incumbent on the part of a money judgment-creditor, like the plaintiff, who was causing lands to be sold under his money-decree, to let it be known to persons bidding for the right, title, and interest of the judgment-debtor in the land that he, the judgment-creditor, held a mortgage on the same land, and intended to enforce it, and not to keep the mortgage, like a stone in his sleeve, in the dark until after the land had been sold to persons ignorant of the existence of such mortgage. This duty was especially incumbent on a mortgagee whose mortgage was neither registered nor even accompanied by possession. It was for the plaintiff who seeks to eject bona fide mortgagees in possession under a registered mortgage, to show that he is not estopped from asserting his mortgage without possession by the sale which he caused to be made under a money-decree altogether independent of his mortgage, and he certainly would, in our opinion, be so estopped if he did not give warning, at or previously to the sale of the land, to the purchaser of his (the plaintiff's) mortgage on the same land, and that the sale was intended to be subject to such mortgage. This the plaintiff has not even alleged that he did, and still less has he proved it. The plaintiff, in order to obtain as much money as he could under his money decree, was interested in keeping his mortgage secret from intending purchasers. The case, therefore, materially differs from that of Itcharam Dayaram v. Raiji Jaga (11 Bom. H.C. Rep., 41), and is not governed by it. We refrain from now expressing any opinion whether we could concur in the ruling mentioned in the last clause of the head-note to that case. For the reason already mentioned, we think that equity forbids that the plaintiff, without making such a special case as we have above indicated, can enforce his mortgage against the defendant to whom the plaintiff himself in execution of a judgment in another suit against the mortgagor, founded upon another cause of action, previously caused the land to be sold.

2. We reverse the decree of the Assistant Judge, and restore that of the Subordinate Judge, with costs of suit and both appeals to be paid by the plaintiff to the defendant.


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