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Moru Narsu Gujar Vs. Hasan Fattekhan Jummal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 1051 of 1916
Judge
Reported inAIR1918Bom105; (1918)20BOMLR929
AppellantMoru Narsu Gujar
RespondentHasan Fattekhan Jummal
Excerpt:
.....of fraud in the written statement in a redemption suit and that the plea of satisfaction of the mortgage decree prior to the court-sale could not be entertained, since the adjustment had not been certified, in view of the provisions of order xxi, rule 2 :-;(1) that, under the provisions of section 47 of the civil procedure code, a question relating to the satisfaction of a decree was a question arising in execution which must be tried by the executing court under that section or at the discretion of that court by suit, in either of which cases the court would be a court precluded from recognising the adjustment ;;(2) that it was very undesirable that the defendant should by the plea of fraud be permitted after the lapse of many years to call in question a title acquired at a..........of fraud in the written statement in a redemption suit and that the plea of satisfaction of the mortgage decree prior to the court-sale should not have been entertained since the adjustment had not been certified, in view of the provisions of order xxi, rule 2.9. it is contended on the other side that it is only the court executing the decree, and not the court trying the suit for redemption, that is precluded from recognising an uncertified adjustment. if, however, the provisions of section 47 are observed it becomes apparent that a question relating to the satisfaction of the decree is a question arising in execution which must be tried by the executing court under that section or at the discretion of that court by suit. in either case the court would be a court precluded from.....
Judgment:

Basil Scott, Kt., C.J.

1. The plaintiff sues for possession of Survey No. 87, pot No. 1, from the defendant 2 or in the alternative for possesion after redemption of a mortgage or mortgages upon it now vested in the defendant 2.

2. The plaintiff's father advanced Rs. 30 upon mortgage of the land in question from one Mariam, one of two female co-owners of the property. The mortgage was unregistered.

3. A decree was obtained on this mortgage in Suit No. 183 of 1899. The property was put up for sale by the Court in execution and on the 9th of January 1901 was purchased with the Court's permission on account of the 2nd plaintiff, then a minor, who claimed as heir of the original mortgagee.

4. Formal possession under the purchase was obtained on the 19th of April 1901. Actual possession could not be obtained, for the land was in possession of the father of the defendant 1 under a subsequent but registered mortgage by Mariam or her co-owner Zuleika. Two further mortgages in favour of the 1st defendant were effected by Mariam pending the prosecution of the proceedings in Suit 183 of 1899. Zuleika had died prior to the Court-sale in 1901 and Mariam as her heir and in her own right was thus entitled to the whole outstanding equity of redemption. In 1903 Mariam purported to sell to the father of defendant 1 her interest in, inter alia, the land in suit and the defendant 2 claims as purchaser from the defendant 1.

5. The defendants in their written statement alleged that the decree and sale in the suit of 1899 were fraudulent.

6. In the trial Court the plea of fraud was negatived and the plaintiff was given a decree for redemption of the land in suit on payment of a sum of Rs. 420 as the proportion of the mortgage debt of Mariam to the defendant 1 applicable to the suit land, on the footing that the mortgages pendente lite were not effectual against the plaintiff.

7. On appeal the lower appellate Court found that the Court-sale under the decree of 1901 was fraudulently obtained inasmuch as money of the judgment-debtor held for satisfaction of the decree was in the hands of those appearing for the 2nd plaintiff at the time of the sale and the plaintiffs' auit was dismissed. From that decree this appeal has been preferred.

8. It is contended that the question of fraud in the execution of the decree ought not to have been investigated upon a vague plea of fraud in the written statement in a redemption suit and that the plea of satisfaction of the mortgage decree prior to the Court-sale should not have been entertained since the adjustment had not been certified, in view of the provisions of Order XXI, Rule 2.

9. It is contended on the other side that it is only the Court executing the decree, and not the Court trying the suit for redemption, that is precluded from recognising an uncertified adjustment. If, however, the provisions of Section 47 are observed it becomes apparent that a question relating to the satisfaction of the decree is a question arising in execution which must be tried by the executing Court under that section or at the discretion of that Court by suit. In either case the Court would be a Court precluded from recognising the adjustment: see Prosunno Kumar Sanyal v. Kali Das Sanyal I.L.R. (1892) Cal. 683 P.C. It is, I think, very undesirable that a defendant should, by a plea, such as we have in this suit, be permitted after the lapse of many years to call in question a title acquired at a Court-sale which was never challenged by the judgment-debtor though she was alive at the time of the trial of this suit and may still be alive. I am not prepared to acquiesce in the suggestion that this should be treated as a suit in which the question of satisfaction whether fraudulent or otherwise before the Court sale may now be raised. The diametrically opposite conclusions arrived at by the trial and appellate Courts upon the recorded evidence, relating, as it does, to events of eleven or twelve years ago, demonstrate the advantage of allowing no deviation from the strict rules of procedure in connection with the issue in question. Nothing in this judgment must be taken as throwing doubt upon the propriety of the Court in the exercise of its inherent powers allowing the investigation of a question of fraud in order to prevent injustice. Here there is no question of injustice. Any investigation of title prior to the defendant l's purchase in 1903 would have disclosed the decree and Court-sale in the mortgage suit of 1899. The defendants, therefore, cannot complain if redemption is allowed on the footing of their interest, as mortgagees still subsisting. The trial Court was right in holding that the mortgages effected during the prosecution of proceedings in the suit of 1890 were ineffectual as against the plaintiff.

10. We set aside the decree of the lower appellate Court and restore that of the trial Court with costs in the lower appellate Court and this Court on the defendants.

Shah, J.

11. I entirely agree.

12. I desire to add that, apart from fraud, there can be no doubt about the plaintiff's right to redeem the mortgages now vested in defendant 2. The mortgage of 1884 was unregistered and therefore not entitled to priority over the subsequent registered mortgages in favour of defendant l's father according to the provisions of Section 50 of the Indian Registration Act. The plaintiff should have joined the subsequent mortgagee as a party to the suit of 1899 in view of Section 85 of the Transfer of Property Act then in force; but the omission to join him does not involve the consequence that he loses his rights as a purchaser at the Court-sale with the leave of the Court in execution of his decree. It is needless to refer to the cases cited in the course of the arguments. On the facts it is clear that the plaintiff is entitled to redeem the mortgages in favour of defendant 1 as the purchaser of the right, title and interest of Mariam, who was undoubtedly entitled to redeem them at the date of the Court-sale.

13. The last two mortgages out of the five in favour of defendant No. l's fathor were effected during the pendency of the plaintiff's suit of 1899 and of the execution proceedings in that Kuit. It is clear that the plaintiff was actively prosecuting the suit and the execution proceedings from the date of the suit to the date of the Court-sale. Under Section 52 of the Transfer of Property Act, Mariam, who was a party to the suit, could not transfer the property by way of mortgage be as to affect the rights of the plaintiff to bring the property to sale free from such burden. These mortgages clearly affected the plaintiff's right under the decree, which he could resist as a purchaser at the Court-sale in execution of that decree. The decisions in Shivjiram v. Waman I.L.R. (1897) Bom 939 and Rachappa v. Mangesh (1898) P.J. 386 though not under Section 52 of the Transfer of Property Act, clearly support this view.


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