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Thakur Prasad and anr. Vs. Kapildeo and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1914)ILR36All17
AppellantThakur Prasad and anr.
RespondentKapildeo and anr.
Excerpt:
.....to law, by coming to terms with the judgment-debtor, and the money raised by means of the mortgage-deed in suit was actually applied to the acquisition of the property for the purchase of which it had all along been intended. the mortgagee seems to have acted in good faith: there is no necessity for presuming a mistake of law on his part (as suggested in the memorandum of appeal before us), for he may simply have failed to notice the date on the receipt shown him by kali dat pande. the failure of the latter to take necessary action within the period limited by law did not relieve him from all liability towards the court executing the decree: his preliminary deposit was forfeited, and he was liable to make good any loss which might occur on a resale. under all the circumstances..........executed by their father kali dat pande. the latter had bid for certain immovable property at an auction sale, and had paid into court the preliminary deposit required by law. in order to complete the transaction he executed a mortgage-deed, hypothecating both the property he proposed to acquire at the auction-sale and other family property in his hands. that is to say, kali dat pande had entered into an engagement by which he bound himself under penalty to deposit in court a certain sum of money by a certain date. in borrowing money in order to enable him to meet this engagement he was clearly discharging an ' antecedent debt, ' and his sons cannot repudiate liability for a mortgage-debt thus incurred. there happens, however, to be in the present case one curious complication. the.....
Judgment:

Ryves and Piggott, JJ.

1. This is a second appeal in a mortgage suit by two defendants, who are the minor sons of the original mortgagor. The last paragraph of the memorandum of appeal to this Court is apparently intended to attack the validity of the deed of transfer under which the plaintiffs are claiming, but it has not been pressed in argument and seems to hare no force. The one substantial question in issue is whether under the particular circumstances of this case the appellants are bound by the mortgage executed by their father Kali Dat Pande. The latter had bid for certain immovable property at an auction sale, and had paid into court the preliminary deposit required by law. In order to complete the transaction he executed a mortgage-deed, hypothecating both the property he proposed to acquire at the auction-sale and other family property in his hands. That is to say, Kali Dat Pande had entered into an engagement by which he bound himself under penalty to deposit in court a certain sum of money by a certain date. In borrowing money in order to enable him to meet this engagement he was clearly discharging an ' antecedent debt, ' and his sons cannot repudiate liability for a mortgage-debt thus incurred. There happens, however, to be in the present case one curious complication. The auction sale had been held on the 21st of May, 1907, and the mortgage-deed in suit was not executed until the 7th of June, 1907. The period of fifteen days, allowed by law within which Kali Dat Pande was bound to complete the transaction had, therefore, expired. It is accordingly contended on behalf of the appellants that the liability which Kali Dat had incurred on the 21st of May, 1907, was at an end; that the mortgagee should have been on his guard, and that if he had carefully examined the receipt for the preliminary deposit submitted by Kali Dat for his inspection, he would have seen that there was no longer any' antecedent debt 'to satisfy and that the money advanced by him on the mortgage could no longer be applied to its ostensible purpose. As regards the subsequent proceedings in connection with the auction sale, we know that the court concerned did in fact refuse to accept Kali Dat's tender of the balance of the purchase money, when this was made after the the expiration of the period prescribed by law. We know also that the property was not put up for sale a second time, as the decree was satisfied by payment into court of the full amount due, ostensibly on behalf of the judgment-debtor: yet the property in question must have been acquired by Kali Dat Pande, for the plaintiffs are proceeding against it in the present suit. Presumably Kali Dat got out of the difficulty in which he found himself, in consequence of his failure to complete the auction-purchase according to law, by coming to terms with the judgment-debtor, and the money raised by means of the mortgage-deed in suit was actually applied to the acquisition of the property for the purchase of which it had all along been intended. The mortgagee seems to have acted in good faith: there is no necessity for presuming a mistake of law on his part (as suggested in the memorandum of appeal before us), for he may simply have failed to notice the date on the receipt shown him by Kali Dat Pande. The failure of the latter to take necessary action within the period limited by law did not relieve him from all liability towards the court executing the decree: his preliminary deposit was forfeited, and he was liable to make good any loss which might occur on a resale. This liability he seems to have met by some private arrangement with the judgment-debtor, and by applying the money borrowed under the deed in suit substantially for the purpose for which it was actually raised. Under all the circumstances it would not be just to hold that the mortgagee had failed to make reasonable inquiries as to the necessity for the loan, or permit the sons to retain the property acquired by means of the loan while repudiating all liability for the same. This appeal therefore fails, and we dismiss it with costs.


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