1. This is a Letters Patent appeal from the judgment of Mr. Justice N. J. Wadia confirming the decree of the lower Courts dismissing the plaintiff-appellant's suit for redemption.
2. The material facts may be very briefly stated. The property in suit was mortgaged in July, 1871, by the father of the plaintiff to the father of the defendant. At the same time the father of the plaintiff executed a rent-note in favour of the mortgagee and remained in possession. He failed to pay the rent and the mortgagee filed a suit to recover it, and obtained a decree, in execution of which he brought the mortgaged property to sale. At the Court-sale he purchased it himself. The available records of this suit do not enable us to say whether this purchase was or was not with the permission of the Court.
3. The question for decision is whether under these circumstances the mortgagor is entitled to redeem. The case-law has been very fully considered in the judgment of Mr. Justice N. J. Wadia, and as we are in agreement with him we do not think it necessary to discuss the cases in great detail.
4. There is one case in the appellant's favour, Martand v. Dhondo I.L.R. (1897) 22 Bom. 624. At any rate it is in the appellant's favour on the assumption that the mortgagee purchased without the Court's permission. In Mar land v. Dhondo it was admitted that the Court's permission had not been obtained. But Sir Charles Farran in his judgment indicated the view that if the permission had been granted it might have validated the sale. On the facts of that case it was held that the purchase by the mortgagee did not affect the mortgagor's right to redeem, and that his right to redeem was not barred by his failure to take steps under the Civil Procedure Code to set the sale aside. But the later decisions of this High Court, while maintaining the principle adopted in Martand v. Dhondo (that ' a mortgagee is not entitled by means of a money decree obtained on a collateral security to obtain a sale of the equity of redemption, because by so doing he deprives the mortgagor of the privilege which a Court of equity always accords to a mortgagor, viz.: a fair allowance of time to enable him to discharge the debt and recover the estate '), have differed from that case in the application of the principle. It has been held that, though the purchase of the equity of redemption by the mortgagee does not ipso facto put an end to the relation of mortgagor and mortgagee, nevertheless the sale to the mortgagee is not a nullity and the mortgagor is bound to follow the procedure allowed by the law to get the sale set aside. Otherwise his right to redeem is barred. This was first laid down in Sahadu Manaji v. Devlya Jaba (1911) 14 Bom. L.R. 254. There the Court relied on the decision of the Privy Council in Khiarajmal v. Daim (1904) L.R. 32 IndAp 23 : S.C. 7 Bom. L.R. 1, and also on Ashutosh Sikdar v. Behari Lal Kirtania I.L.R. (1907) 35 Cal. 61. Although it is not so expressly stated in the judgment the decision in Martand v. Dhondo was evidently treated as no longer good law, and the Court's finding was inconsistent with that case. Then there is Siddeshwar Martand v. Ganpatrao Bhaurao ilr (1925) Bom. 331 : 28 Bom. L.R. 588, where it was expressly held that Martand v. Dhondo is no longer an authority. Reference was made there to an unreported case, Govindrao v. Waman S.A. No. 474 of 1909 (Unrep.) where it was held that in view of the fact that Martand v. Dhondo was cited and discussed in the argument before the Judicial Committee in Khiarajmal v. Daim, the inference was that the equitable principle had been too broadly stated in that case. Now these decisions of our High Court which have interpreted the decision of the Privy Council and, on the construction which the Court has placed upon that decision, have decided that Martand v. Dhondo is no longer an authority, are binding upon us unless it can be shown that there is something in them which is clearly contrary to the law as laid down by their Lordships of the Privy Council.
5. The learned counsel for the appellant here has taken us very carefully through the facts of Khiarajmal v. Daim. That was a very complicated and peculiar case, and it is by no means easy to follow the precise implication of some of their Lordships' observations if it is attempted to apply them to other sets of facts. There is no doubt that the head-note correctly states the main point that was decided in that case, viz.:
A Court has no jurisdiction to sell an equity of redemption unless the mortgagors are parties to the decree or the proceedings which lead to it, or are properly represented on the record. As regards those mortgagors who are not parties thereto, such sales are without jurisdiction, and therefore nullities, and may be disregarded without any proceeding's to set them aside.
But what we are concerned with is the position of a mortgagor who was a party to the proceedings and yet has taken no steps to set the sale aside. The passage in the judgment on which reliance is mainly placed both for and against the appellant, is at p. 37 of the report :
Their Lordships, therefore, substantially agree with the appellate Judge as to his view of the facts of the case. But the Judge has made a decree for redemption of the whole estate, on the ground that ' the mortgagees could not acquire the equity of redemption directly or indirectly by purchase at a Court sale except by a suit brought on the mortgage, on account taken and time specially allowed for redemption.' Their Lordships cannot concur in this view, which they think is based on a misapplication of a sound principle of equity. Their Lordships throw no doubt on the principle, which has been acted on in many cases in India, that a mortgagee cannot, by obtaining a money decree for the mortgage debt and taking the equity of redemption in execution, relieve himself of his obligations as mortgagee, or deprive the mortgagor of his right to redeem on accounts taken, and with the other safeguards usual in a suit on the mortgage.
Their Lordships then went on to refer to special circumstances in the case before them which took it out of the scope of the general rule, and concluded by saying : ' In any case the point taken by the Appellate Judge would not be a cause of nullity for want of jurisdiction, but a case of irregularity in procedure only.' As Mr. Thakor has pointed out, it does not appear to have been expressly decided in that case what effect failure to take proceedings to set aside a sale to the mortgagee would have had on the mortgagor's right to redeem.
6. On the other hand, I think, it is impossible to say that there is anything in the judgment of their Lordships which is inconsistent with the view taken by this High Court in the two cases to which I have referred. The same view has been taken by other High Courts. There are two full bench decisions of the High Court of Calcutta. In the earlier one, Ashutosh Sikdar v. Behari Lal Kirtania two questions were referred for decision (1) whether, when a sale has been held in contravention of the provisions of Section 99 of the Transfer of Property Act, the sale is a nullity or an irregular and voidable sale, and (2) whether the right of redemption of a mortgagor is or is not affected by such sale. The first question was answered by holding that a sale held in contravention of Section 99 of the Transfer of Property Act is riot a nullity but an irregular sale liable to be avoided merely on proof that the terms of Section 99 have been contravened, and further that the application to set aside the sale must be made under Section 244 of the Code of 1882, and must be made before confirmation of the sale, unless the applicant proves that owing to fraud or other reasons he was kept in ignorance of the sale proceedings preliminary to sale. The other question was left undecided on the ground that it did not arise in that suit which was not a suit for redemption. Mr. Thakor has relied upon some of the observations of Mr. Justice Mookerjee in this case and argues that if that learned Judge's interpretation of the decision of the Privy Council in Khiarajlal v. Daim be accepted, then the appellant's suit for redemption in the present case is not barred. There is, however, a later full bench decision of the same High Court, Uttam Chandra Daw v. Rajkrishna Dalal I.L.R. (1919) Cal. 377. In that case the answer is given to the second question referred to the full bench in Ashutosh Sikdar's case and then left unanswered. It was held that where a mortgagee has in contravention of Section 99 of the Transfer of Property Act attached the mortgaged property and brought it to sale and purchased it himself, the mortgagor or his transferee cannot successfully maintain a suit for redemption of the property without first getting the sale set aside. Mr. Justice Mookerjee was a party to that judgment also and fully agreed with the decision, as his judgment shows. The same view has been taken by a full bench of the Allahabad High Court in Lal Bahadur Singh v. Abharam Singh I.L.R. (1965) All. 165, and I may note that Sir Dinshah Mulla in his Transfer of Property Act has accepted the position that Martand v. Dhondo is no longer an authority. The appeal fails and must be dismissed with costs.
7. I agree and have nothing to add.