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Someshwar Amratlal Vs. Naranbhai Jorabhai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 59 of 1906
Judge
Reported in(1911)13BOMLR90
AppellantSomeshwar Amratlal
RespondentNaranbhai Jorabhai
Excerpt:
mortgage--sub-mortgage--suit on sub-mortgage--original mortgagor not a necessary party--party to suit--practice.;a derivative mortgagee is entitled to sue the original mortgagee without making the original mortgagor a party. - .....possibility of difficulty here. after.4. the suit is one brought by a sub-mortgagee against the original mortgagee who are his sub-mortgagors, and a purchaser of their rights. the appellant is the purchaser.5. the original mortgagor is not a party to the suit. it is clear, therefore, that the rights of the mortgagor cannot be affected by any decree in this suit.6. the decree, however, speaks generally of the sale of the mortgaged property. this is strictly accurate, but it must be remembered that the mortgaged property does not include the interest of the mortgagor in the property.7. an objection has been taken before us that the mortgagor is not a party. but this objection is not sound. a derivative mortgagee is entitled to sue the original mortgagee without making the original.....
Judgment:

Lawrence Jenkins, Kt., C.J.

1. The argument that the suit is barred by the law of limitation proceeds upon the assumption that there had been an application to the Court under Sections 278 to 283 of the Civil Procedure Code and a refusal of the application.

2. It however has been determined in a prior suit, to which the plaintiff and the present appellant were parties, that the application to which we have alluded was not under those sections but under Section 287.

3. That being so it is clear that the objection on the score of limitation fails. It is then suggested that the decree has been so framed as to give rise to the possibility of difficulty here. after.

4. The suit is one brought by a sub-mortgagee against the original mortgagee who are his sub-mortgagors, and a purchaser of their rights. The appellant is the purchaser.

5. The original mortgagor is not a party to the suit. It is clear, therefore, that the rights of the mortgagor cannot be affected by any decree in this suit.

6. The decree, however, speaks generally of the sale of the mortgaged property. This is strictly accurate, but it must be remembered that the mortgaged property does not include the interest of the mortgagor in the property.

7. An objection has been taken before us that the mortgagor is not a party. But this objection is not sound. A derivative mortgagee is entitled to sue the original mortgagee without making the original mortgagor a party.

8. The decree is therefore confirmed. The appellant must pay the costs of respondent No. 1 of this appeal.


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