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ibrahim Goolam Husenbux Vs. Nihalchand Waghmul - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 1144 of 1918
Judge
Reported in(1920)22BOMLR113; 55Ind.Cas.536
Appellantibrahim Goolam Husenbux
RespondentNihalchand Waghmul
DispositionAppeal allowed
Excerpt:
.....having applied to execute the decree by sale of the mortgagor's equity of redemption in the mortgaged property:-;(1) that the assignee was not competent to have the mortgaged property sold in execution of the decree, owing to the provisions of order xxxiv, rule 14, of the civil procedure code, 1908, inasmuch as the agreement whereby the mortgagor agreed to pay rent was passed at the same time as the mortgage, and was therefore part of the mortgage transaction:;kadma basin v. muhammad ali (1919) i.l.r. 41 all. 399, followed.;(2) that the assignee was not in this respect in a better position than his assignor, the mortgagee.;chhagan v. lakshman (1907) i.l.r. 31 bom. 462 : 9 bom. l.r. 728, followed. - - 6. it has been urged that the respondents, who are assignees of the original..........in the first place, that the money for which the decree was passed was an essential part of the mortgage money, just as much as arrears of interest, which, if falling due on a contract of simple mortgage, become part of the mortgage money; in the second place it seems to me that it would be doing violence to the plain language of the rule to say that the claim in satisfaction of which this decree was passed was not a claim arising under the original contract of mortgage.5. i agree with these remarks, and they apply even more strongly to the facts of this case, as the agreement whereby the mortgagor agreed to pay rent was passed at the same time as the mortgage, and was, therefore, part of the mortgage transaction.6. it has been urged that the respondents, who are assignees of the.....
Judgment:

Norman Macleod, Kt., C.J.

1. This is an appeal from the order of the District Judge of Thana disallowing the appellant's contention, that the execution of the decree passed against him in favour of Fojmal Navlaji and others could not proceed by bringing the mortgaged property to sale. Fojinal Navlaji and others were mortgagees of the appellant under a mortgage of the 10th of June 1913. That was a usufructuary mortgage. On the same day the defendant-mortgagor executed a rent-note in favour of the mortgagees for a period of twelve months, and as he did not pay the rent under that rent-note the mortgagees filed a suit, and obtained a decree for Rs. 1,000. Then they assigned that decree to the present respondents who sought to issue execution by sale of the mortgagor's equity of redemption in the mortgaged property.

2. It has been contended for the appellant that the respondents cannot be allowed to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage under Order XX.XIV, Rule 14, of the Civil Procedure Code. Now in cases of usufructuary mortgages it is not unusual for the mortgagees to allow the property to remain in the possession of the mortgagor on his executing a rent-note. But as a matter of fact that is merely a method of securing the interest by special agreement, that is to say, the mortgagor collects the usufruct and pays a certain amount to the mortgagee under the rent-note instead of the mortgagee collecting the usufruct himself.

3. It does not seem that the question which arises in this appeal has been decided in any reported case of this Court, although in more than one case which has lately come before this Bench, it has appeared that a mortgagee has obtained a rent-note from his mortgagor, and issued execution on a decree under that rent-note. At first sight it might appear that that is not a decree for the payment of money in satisfaction of a claim arising under the mortgage.

4. This question was considered very fully in a recent Allahabad decision in Kadma Pasin v. Muhammad Ali I.L.R(1919) All. 399. The facts were very similar to the facts in this case. There the property was mortgaged by a usufructuary mortgage, and a subsequent agreement was entered into between the parties, whereby the mortgagor bound herself to pay annually a fixed sum of money in lieu of the offerings, and also, in case of default, to pay interest thereon. Default having been made, the mortgagee sued on the agreement and obtained a decree for money against the mortgagor. In execution of this decree he attached the mortgaged property and sought to have it sold. Upon objection by the mortgagor, judgment-debtor, it was held that the mortgagee could not bring the mortgaged property to sale in execution of the decree, as the claim under the subsequent agreement was one arising under the original contract of mortgage within the meaning of Order XXXIV, Rule 14, of the Code of Civil Procedure. Mr. Justice Piggott at p. 407 says:

In the case now before us the money for which this decree was obtained represented the usufruct of the mortgaged property to which the mortgagee was entitled as part of his contract of mortgage. His right to receive this money rested upon his position aa mortgagee. The mortgagor had become liable to pay the mortgagee this money in consequence of an agreement entered into between the parties subsequent to the mortgage : but it seems to me, in the first place, that the money for which the decree was passed was an essential part of the mortgage money, just as much as arrears of interest, which, if falling due on a contract of simple mortgage, become part of the mortgage money; in the second place it seems to me that it would be doing violence to the plain language of the rule to say that the claim in satisfaction of which this decree was passed was not a claim arising under the original contract of mortgage.

5. I agree with these remarks, and they apply even more strongly to the facts of this case, as the agreement whereby the mortgagor agreed to pay rent was passed at the same time as the mortgage, and was, therefore, part of the mortgage transaction.

6. It has been urged that the respondents, who are assignees of the original mortgagees' decree, are in a better position than their assignors. But it seems to me perfectly clear that a mortgagee who has obtained a decree which he cannot execute by sale of the mortgaged property, cannot put his mortgagor in a worse position by assigning his decree to a third party. That question was considered in Chhagan v. Lakshman I.L.R(1907). 31 Bom. 462 : 9 Bom. L.R. 728. The learned Judges there referred to a dictum by Tindal C.J. in Booth v. Bank of England (1840) 7 Clause & F. 509, 540 : 'Whatever is prohibited by law to be done directly, cannot legally be effected by an indirect and circuitous contrivance.

7. Therefore, on the facts of this case, it seems to me that this claim on which the mortgagee got a decree was really a decree for payment of money in satisfaction of the claim arising out of the mortgage; and, therefore, comes within Order XXXIV, Rule 14, of the Code. The appeal must be allowed with costs throughout.


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