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Gauri Shanker Lal Vs. Tulshi Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Case NumberF.A.F.O. No. 75 of 1946
Judge
Reported inAIR1950All47
ActsDebt Law;Uttar Pradesh Debt Redemption Act, 1940 - Sections 2(9) and 8
AppellantGauri Shanker Lal
RespondentTulshi Singh and anr.
Appellant AdvocateRaizada Sumer Chand Jain, ;Jagnandan Lal and ;Raj Bahadur Jain, Advs.
Respondent AdvocateN.R. Sharma, Adv.
DispositionAppeal dismissed
Excerpt:
.....and subsequently the first mortgagee instituted proceedings against the mortgagor for recovery of the amount due to him on the first mortgage and obtained a decree for sale......47). in that case the learned judges said :'it is difficult to conceive of a case in which, by sale of property in execution of a decree, the liability to pay the debt, to which the property was subject, is transferred to another person unless it is intended to say that a parson other than the borrower has become, on account of his purchase of the property burdened with the debt, interested (with a view to save the property from being sold in satisfaction of the debt) in repayment of the encumbrance. it is clear, however, from the language used that by the expression 'the liability for repayment of which . . . has been transferred to another person' the legislature intended to refer to the liability of the purchaser at an auction sale of a property burdened with an encumbrance to.....
Judgment:

Mootham, J.

1. In my opinion this appeal must be dismissed.

2. The relevant fasts can be stated very-shortly. Three persons mortgaged sixteen villages to the appellant to secure an advance. In 1932 the appellant obtained a mortgage decree, but before any steps were taken to execute that decree the Co-operative Bank obtained a simple money decree against one of the mortgagors and in execution of that decree the interest of that mortgagor in eight of these sixteen villages was sold. The other two mortgagors (who are the present respondents) then applied under Section 8,. United Provinces Debt Redemption Act, 1940, for amendment of the mortgage decree. The learned Civil Judge dismissed the application on the ground that the mortgagors' liability for the repayment of the advance had, by virtue of the sale in execution of the decree obtained by the Co-operative Bank, been transferred to another person, and that therefore there was no loan within the meaning of Section 2 (9) of that Act. There was an appeal to the learned District Judge of Azamgarh who took a different view of the effect of the execution sale and allowed the appeal. The mortgagee now appeals to this Court,

3. Now Section 2 (9) which defines 'loan,' provides that that term shall not include an advance 'the liability for the repayment of which has, by a contract with the borrower ... or by sale in execution of a decree, been transferred to another person.' and it has been argued that the learned Civil Judge was right in holding that as a result of the execution sale the liability for repayment of the advance had been transferred to a third person, the auction purchaser, within the meaning of this sub-section. The effect of the Sub-section was considered by a Full Bench of this Court in-Saran Singh v. Miththan Lal : AIR1946All174 , a ease upon which Mr. Jagnandan Lal, who-appeared for the appellant, placed much reliance. In that case a mortgagor executed two successive mortgages of his property and left in the hands of the second mortgagee a sum of money sufficient to cover the principal and interest due on the first mortgage on the understanding that the second mortgagee would, with such money, pay off the first mortgage. The second mortgagee failed to do so, and subsequently the first mortgagee instituted proceedings against the mortgagor for recovery of the amount due to him on the first mortgage and obtained a decree for sale. The mortgagor, who was admittedly an agriculturist, applied for amendment of the decree under the United Provinces Debt Redemption Act. Iqbal Ahmad C. J., who delivered the judgment of the Court said:

'The question is whether the words 'recoverable' and 'liability for repayment' refer to the strictly formal right of recovery or right to enforce repayment which in the circumstances of the case exists only between the first mortgagee and the mortgagor, or whether they should be read in a wider sense so as to refer to the right to recover and the liability to repay in the sense of the ultimate incidence of the burden of the mortgage debt. In our view both on the construction of the words and the definition itself and on a consideration of its purpose, it la the latter and wider construction that is the right one.'

Applying that principle the Court held that in a case in which the mortgagor had left a sufficient part of the mortgage money in the hands of the second mortgagee, or of a purchaser of the property, for the purpose of discharging the first mortgage he had, as between himself and the second mortgagee or the purchaser, transferred the entire liability for the first or only mortgage, in the sense of the ultimate burden of bearing it. Mr. Jagnandan Lal has contended that because at the time of the auction sale the eight villages were sold subject to the mortgage decree the ultimate incidence of the burden of the mortgage debt had passed to the auction purchaser. In my opinion this is not so. Not only is it obvious that without the consent of the mortgagee the judgment-debtor's interest in the eight villages sold in execution o the Bank's decree could be sold only subject to the mortgage, but there is nothing whatever to suggest that there had been transferred to the auction purchaser any liability for the charge of the mortgage debt. As was emphasised in Saran Singh's case : AIR1946All174 (Supra) it is not the transfer by the mortgagor of the mortgaged property or of his equity of redemption therein which is the determining factor, but the transfer of the liability for repayment. Of that I can, in this case, find none.

4. This appeal, indeed, appears to me to be covered by the decision in Shyam Sunder Lal v. Data Ram : AIR1946All147 , a case not cited to us during the argument. In that case a mortgagor executed two second mortgages in respect of different parts of the property the subject of the first mortgage, and another part of that property had been sold to a third person by sale in execution of a decree, This Court held that the fact that a portion only of the mortgaged property had in such circumstances been transferred did not result in any transfer of liability for the repayment of the advance and that the mortgagor was entitled to the benefits of the U. P. Debt Redemption Act.

5. Our attention was drawn by learned counsel to a passage in the judgment of the Lucknow High Court in the case of Lalji Singh v. Lakshmi Narain, 20 Luck. 545 : (A. I. R. (33) 1946 oudh 47). In that case the learned Judges said :

'It is difficult to conceive of a case in which, by sale of property in execution of a decree, the liability to pay the debt, to which the property was subject, is transferred to another person unless it is intended to say that a parson other than the borrower has become, on account of his purchase of the property burdened with the debt, interested (with a view to save the property from being sold in satisfaction of the debt) in repayment of the encumbrance. It is clear, however, from the language used that by the expression 'the liability for repayment of which . . . has been transferred to another person' the Legislature intended to refer to the liability of the purchaser at an auction sale of a property burdened with an encumbrance to satisfy that encumbrance.'

Great reliance was placed upon this statement, Mr. Jagnandan Lal contending, if I understood his argument correctly, that the liability for the repayment of an advance is, within the meaning of Section 2 (9) of the Act, transferred to the purchaser at an auction sale of any part however small, of the mortgaged property because such a purchaser is 'interested in repayment of the encumbrance.' Such a view is, in my opinion, opposed to both principle and authority, and it is clear that the learned Judges in the case to which I have referred were not attempting to do more than to state in general terms the meaning and effect of Section 2 (9) of the Act, for the question be-fore them in that case which they, having in their own words 'cleared the ground,' proceeded then to consider was whether it was intended by the Legislature that a donee of the mortgagor should be given the benefit of the provisions of the Act. That case is, therefore, of no assistance to the appellant; and for the reasons which I have given I am of opinion that this appeal fails and must be dismissed with costs.

6. Before parting with the appeal I think it is desirable to draw attention to the inconvenience which is caused by the practice of the lower appellate Court in this Base of citing decisions of this Court; by referring only to the pages and volumes of the reports at which these are to be found without mentioning the names of the parties. Not only is there the ever-present risk of a typing mistake making the reference wholly unintelligible, but as a result of the multiplicity of the reports it is difficult to determine whether the case referred to by the lower Court is that which is reported in another series of reports without comparing the two decisions. The name of the case should invariably be given, and if that case has been reported in the official series, it is that citation which should be given in preference to any other.

Wanchoo, J.

I concur.


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