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Bai Nurjan Begam Vs. Hansraj Jethumal and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case Number Second Appeal No. 608 of 1923
Judge
Reported inAIR1925Bom239; (1925)27BOMLR202
AppellantBai Nurjan Begam
RespondentHansraj Jethumal and Co.
DispositionAppeal dismissed
Excerpt:
.....order xxxiv, rule 14 - decrees on distinct mortgages-suit for sale, of properly other than the mortgaged property. where a mortgagee obtains two separate money decrees on two distinct mortgages from the same mortgagor, it is competent to him to execute one of the decrees by sale of property which is subject to mortgage under the other decree. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the accused either belongs to or does..........the mortgage of october 15, 1915, to sale in execution of the decree passed in respect of the claim arising under the mortgage of july 1, 1914, and they applied for sale of the property mortgaged under the mortgage of july 1, 1914, in execution of the decree obtained by them in respect of the claim under the mortgage of 1915. the question that arose was whether in virtue of the provisions of rule 14 they could bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage. the lower appellate court has held that under rule 14 the plaintiffs were prevented from bringing the mortgaged property to sale otherwise than by instituting a suit in execution of the decree obtained by them for the payment of money in satisfaction of the claim.....
Judgment:

Lullubhai Shah, Kt., Acting C.J.

1. These appeals raise an interesting question of law as to the interpretation of Order XXXIV, Rule 14, of the Code of Civil Procedure. The facts are these :-

The plaintiff's obtained a mortgage in respect of two houses Nos. 624 and 848 on July 1, 1914, from the defendants. There was a second mortgage in respect of the same houses in favour of the plaintiff's with which we are not directly concerned. On October 15, 1915, there was another mortgage in favour of the plaintiffs in respect of house No. 780 by the same parties. In 1917 about the same time the plaintiff filed two suits to recover rents due in respect of the mortgaged properties and for possession thereof. The rent was apparently due under rent-notes under which the mortgagors continued in possession as tenants of the mortgagees. In each suit they obtained a decree for possession as also for the rent claimed. Thus, on April 16, 1919, the plaintiffs had two decrees in their favour in respect of claims arising under these two distinct mortgages. They then applied to bring the property mortgaged under the mortgage of October 15, 1915, to sale in execution of the decree passed in respect of the claim arising under the mortgage of July 1, 1914, and they applied for sale of the property mortgaged under the mortgage of July 1, 1914, in execution of the decree obtained by them in respect of the claim under the mortgage of 1915. The question that arose was whether in virtue of the provisions of rule 14 they could bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage. The lower appellate Court has held that under rule 14 the plaintiffs were prevented from bringing the mortgaged property to sale otherwise than by instituting a suit in execution of the decree obtained by them for the payment of money in satisfaction of the claim arising under that particular mortgage. The plaintiffs' position was that they sought to bring the property to sale in execution of the decree for the payment of money in satisfaction of the claim arising not under that particular mortgage but under the other mortgage.

2. Defendant No. 2 has appealed to this Court from the orders passed by the lower appellate Court disallowing her contention; and in support of the appeals it is urged that both these mortgages should be taken really as practically one transaction . constituting the mortgage within the meaning of rule 14, that both the claims should be treated really as arising under two mortgages, that quite apart from the circumstance whether the claim arises under one mortgage or the other within the meaning of rule 14. the plaintiff really seeks to bring to sale the property mortgaged in execution of decrees in respect of claims arising under the mortgages taking both the mortgages together. On the other hand it is urged that these two are distinct transactions and that as the legislature has expressly limited the scope of rule 14 to claims arising under the mortgage, there is no reason why the plaintiff should not be allowed to proceed in execution against the mortgaged property if he seeks to execute a decree which has been obtained not in respect of a claim arising under the mortgage but otherwise. Speaking for myself, I do not think that the point is entirely free from difficulty, and it may be that where there are simultaneous and different mortgages which could reasonably be treated as constituting one transaction the Court would be slow to allow the plaintiffs to resort to a device which would enable them to do something which it is the object of rule 14 to prevent. But in the present case, I do not think that having regard to the wording of the rule the words 'the mortgage' could be read as applicable to both the mortgages. The transactions were quite distinct and independent; and it does not matter if the plaintiffs seek to enforce the decree against the mortgaged property so long as the claim in respect of which they have obtained a decree is not a claim under the particular mortgage. Whether the claim arises under another mortgage or is a simple money claim cannot make any difference to the application of rule 14. The wording of rule 14 is not the same as that of the repealed Section 09 of the Transfer of Property Act. Its scope is restricted to the case of a decree for the payment of money in satisfaction of a claim arising under the mortgage. 1 think that to rend 'mortgage' in the singular as including 'mortgages' in the plural with reference to mortgages which are independent and cannot be rightly treated as forming one transaction of mortgage would involve a, repugnancy in the subject and context Having regard to the fact that the two mortgages here are quite independent, I am satisfied that the view taken by the lower appellate Court is right. We, therefore, dismiss both the appeals with costs

Kincaid, J.

3. I agree.


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