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Nanalal Bhogilal and anr. Vs. Ambalal Somnath - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 307 of 1950
Judge
Reported inAIR1951Bom426; (1951)53BOMLR586; ILR1952Bom1
ActsCode of Civil Procedure (CPC) , 1908 - Sections 6, 38 and 47 - Order 34, Rule 1; Suits Valuation Act, 1887 - Sections 8
AppellantNanalal Bhogilal and anr.
RespondentAmbalal Somnath
Appellant AdvocateB.G. Thakor, Adv.
Respondent AdvocateD.V. Patel, Adv.
DispositionAppeal dismissed
Excerpt:
.....and sale--plaintiff prior mortgagee for rs. 1,200--puisne mortgagee for rs. 6,800 made party to suit--suit in court of civil judge, junior division--pecuniary jurisdiction of court limited to rs. 5,000--consent decree in favour of plaintiff and puisne mortgagee--execution of decree by puisne mortgagee--civil procedure code (act v of 1908), order xxxiv, rule 1, order xxiii rule 3--'so far as it relates to the suit'--interpretation.;the plaintiff (prior mortgagee) sued to enforce his mortgage for rs. 1,200 against defendants nos. 1 and 2 (mortgagors) in the court of civil judge, junior division, the pecuniary limit of whose jurisdiction was rs. 5,000 and under. as required by order xxxiv, rule 1, of the civil procedure code, 1908, he added as a necessary party to the suit a subsequent..........that court to proceed with the execution application in accordance with law. from the appellate decree defts. 1 & 2 have come up in second appeal.6. upon this appeal mr. b. g. thakor for the appellants has taken up two points. in the firstplace, he contends that the consent decree passed on 5-10-1945, is one without jurisdiction, so that the executing court cannot proceed to execute the decree. it is next contended that the relief which has been claimed by the respondent in the present darkhast did not relate to the suit that it was extraneous to the suit & that the respondent's remedy, if any, was to file a separate suit & not to proceed by way of an execution application. each of the two points, if correct, is sufficient to disentitle the respondent to the relief claimed by him. but.....
Judgment:

Dixit, J.

1. This is a second appeal in execution which raises an interesting question of jurisdiction.

2. The decree sought to be executed was passed on 5-10-1945. It was a decree by consent. The suit in which the decree was passed was suit No. 496 of 1942 filed by one Raval Goculeshwar Maganlal in the Court of the Joint Civil Judge, Junior Division, Ahmedabad. The suit was to enforce a mortgage executed in his favour on 6-5-1932, by two defts., who are father & son, & who are appellants in the present appeal. In the suit was also another party as deft. 3, who is the respondent to the present appeal. Defts. 1 & 2 effected three mortgages, subsequent to the first mortgage in favour of deft. 3 & those three mortgages are dated 16-12-1932, 27-11-1933 & 17- 5-1938. The mortgage in favour of the plff. was one in order to secure a sum of Rs. 1,200 & the mortgages in favour of deft. 3 were respectively to secure Rs. 1,300, Rs. 1,500 & Rs. 4,000. The mortgage in favour of the plff. was one with possession.

3. In the suit in question the plff. & the defts came to an agreement or compromise & the agreement was embodied in a decree. There are several parts of the decree which are set out in the appellate judgment. Nothing turns upon the terms of the decree, so that it is not necessary to refer to those terms in any detail in this place.

4. Briefly stated, the decree so far as it is relevant to the present appeal, is to the effect that defts. 1 & 2 were to pay deft. 3 a sum of Rs. 7000 in respect of his mortgage claims in the manner provided in the decree.

5. In the year 1948 deft. 3 filed darkhast No. 394 to execute the decree when he was met with the objection that the decree was not executable. This plea found favour with the executing Court & in the result that Court disposed of the darkhast with coats on the D. H. From the order made by the executing Court deft. 3 preferred an appeal in the District Court, Ahmedabad & the learned Joint Judge allowed the appeal of deft 3, reversed the order of the executing Court & directed that Court to proceed with the execution application in accordance with law. From the appellate decree defts. 1 & 2 have come up in second appeal.

6. Upon this appeal Mr. B. G. Thakor for the appellants has taken up two points. In the firstplace, he contends that the consent decree passed on 5-10-1945, is one without jurisdiction, so that the executing Court cannot proceed to execute the decree. It is next contended that the relief which has been claimed by the respondent in the present darkhast did not relate to the suit that it was extraneous to the suit & that the respondent's remedy, if any, was to file a separate suit & not to proceed by way of an execution application. Each of the two points, if correct, is sufficient to disentitle the respondent to the relief claimed by him. But I am not satisfied that either of the two contentions is well-founded.

7. Now, the principles as regards the powers of an executing Court are well settled. An executing Court cannot question the validity, legality or correctness of a decree. Its duty is to execute the decree except where it is shown that the Court passing a decree had no inherent jurisdiction to pass it. Bearing in mind these principles it is now necessary to turn to the circumstances in which the consent decree was passed. The suit filed by the original plff. was a suit to enforce a mortgage. To the suit he had joined not only the original mortgagors but also a subsequent mortgagee who is the present respondent. Under the provisions of Order 34, Rule 1, Civil P. C., all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. It cannot, therefore, be urged that deft. 3 should not have been joined as a party to the suit. The suit which the plff. filed was a suit to enforce the mortgage in his favour. The mortgage was executed in order to secure a sum of Rs. 1,200 & the plff. as the first mortgagee sought by his plaint to recover a sum of Rs. 1,899. This was the valuation which the plff. put in the plaint and it is not in dispute that this was the correct valuation, having regard to Section 7(ix), of the Court-fees Act. It is apparent, therefore, that the suit was properly instituted in the Court, in which it was instituted & Mr. Thakor for the appellants has not disputed that in such a suit the Court which made the decree would have jurisdiction to pass an appropriate decree. But he contends that inasmuch as the three mortgages in favour of deft. 3 exceeded an amount of Rs. 5,000 which is the upward limit of the pecuniary jurisdiction of the Court which made the decree, the Court which passed the decree had no jurisdiction to pass it in favour of deft. 3 because the amount awarded to the respondent was a sum of Rs. 7,000 & the amount due upon the three mortgages in favour of the respondent exceeded a sum of Rs. 5,000. A reference to Rule 4 of Order XXXIV shows that a plff. suing upon a mortgage is entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold & the proceeds of the sale be paid into Court and applied in payment of his debt as indicated in that rule. The rule provides that after the plff. is so paid, the balance, if any, is to be paid to the deft. or other persons entitled to receive the same. In the face of this provision it is, I think, not open to the appellants to contend that the question of the mortgages in favour of deft. 3 could not be gone into in the suit. A subsequent mortgagee is a necessary party under Order XXXIV, Rule 1 & a subsequent mortgagee is interested in the amount realised at the sale of the property after a preliminary decree is passed. Now, the property which was the subject of mortgage in the pltff.'s favour was again the subject-matter of three mortgages in favour of deft. 3, & I fail to see how it is possible to join a puisne mortgagee as a necessary party to the suit without mentioning his claims in the suit. You do not join a party as a necessary party to the suit unless he has some interest in the subject-matter of the suit. It is true that in this instance the amounts secured by the three mortgages aggregated to a sum exceeding Rs. 5,000 & it is this circumstance which has enabled the appellants to put forward the contention that the Court which passed the consent decree had no jurisdiction to make it. Now, this is a consent decree; but that surely will not avail the D.-H. if it is shown that the Court had no jurisdiction to pass it because consent of a party cannot confer jurisdiction upon a Court where no such jurisdiction exists in that Court.

8. The question to be decided, therefore, is whether the appellants are right in their contention that the original Court had no jurisdiction to pass this decree. For the reasons given above, it seems to me that the trial Court had jurisdiction to pass the decree for the reason that deft. 3 was a necessary party to the suit & that the three mortgages in his favour related to the same property. Question then is whether the circumstance of the three mortgages aggregating to a sum exceeding Rs. 5,000 would deprive the Court of its jurisdiction to pass the decree. It seems to me that this circumstance has nothing to do with that question. The question of jurisdiction has to be decided by reference to the allegations made in the plaint. Mr. Thakor for the appellants has conceded that the plff. had a right to file the suit in the Court in which it was filed & that the claim which the plff. put forward fin the suit was a claim in respect of which the trial Court could grant a decree. Apart from authority, therefore, this contention must be rejected. At the most, it was an irregular exercise of jurisdiction. However, fortunately for the respondent, there is a direct authority in his favour. That is the decision of the Nagpur High Court in Ganpatrao v. Shamrao I. L. R. (1941) Nag. 194. It is enough to quote the head-note in that case which is as follows:

' A mortgage suit in which a subsequent mortgagee who is added as a deft. wants his right to be investigated & decided, has to be valued for the purpose of jurisdiction ad valorem on the amount due on the plff's. prior mortgage, & jurisdiction of the trial Court is not lost if the amounts claimed on the prior & subsequent mortgages taken together exceed the pecuniary jurisdiction of the Court.No court fees are payable on the claim under the subsequent mortgage.'

This case, in turn, relies upon the Calcutta case in Shailendrakumar v. Haricharan Sadhukhan 58 Cal. 829. It seems to me that both on the statutory provisions & on authority the contention urged in support of the appeal must, therefore, be rejected.

9. Mr. Thakor, however, argues that even if the Court had jurisdiction to pass the decree, the decree is not executable. The contention is based upon the assumption that the claim of deft. 3 does not relate to the suit, the contention being that the proper remedy of deft. a was to file a suit & not to proceed by way of execution. It seems to me that this contention must likewise fail. The expression ' so far as it relates to the suit ' has been judicially considered by Madgavkar J. in the case of Bajirao v. Sakharam 33 Bom L. R. 463 and it is there observed that it is a very wide expression & may include something which was extraneous to the suit & which was never in question in the suit itself. In the present case the facts are stronger. The property mortgaged is the same. The suit was by a prior mortgagee to enforce his mortgage. Under the law to such a suit a subsequent mortgagee is a necessary party, & in this suit the Court was concerned with the investigation of the claim both of the plff. as well as of deft. 3. I fail to see, therefore, how it can be said that the claim of deft. 3 did not relate to the suit. If it relates to the suit, it can then well form the subject-matter of the consent decree, & when the consent decree provided that in the event of defts. 1 & 2 not paying the amount as directed by the decree deft. 3 was entitled to recover the amount by sale of the property, it seems to me that is not possible to successfully contend that this part of the decree was, therefore, not executable. In my opinion, therefore, this contention must equally fail.

10. As the two contentions urged in supportof the appeal fail, the appellate decision willhave to be affirmed. The result is that this appealfails & the same will be dismissed with costs.


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