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Bai Noor Jan Bagam Vs. Hansraj Jethamal and Company and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1925)ILR49Bom208
AppellantBai Noor Jan Bagam
RespondentHansraj Jethamal and Company and ors.
Excerpt:
civil procedure code (act v of 1908), order xxxiv, rule 14 - decree--execution--claim arising under mortgage--sale of property covered by another mortgage. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of sections 124-a, 153-a, 153-b, 292, 293, 295a of i.p.c., - 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......mortgaged property if they seek 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.....
Judgment:

Lallubhai Shah, Kt., Acting C.J.

1. [His Lordship after stating the facts as above proceeded to deal with the point of law in the case as follows:]

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 the 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 plaintiffs really seek 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 plaintiffs should not be allowed to proceed in execution against the mortgaged property if they seek 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 name as that of the repealed Section 99 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. I think that to read '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.

Kingaid, J.

3. I agree.


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