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Sundar Singh and ors. Vs. Bholu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All322
AppellantSundar Singh and ors.
RespondentBholu and ors.
Excerpt:
.....act), section 85 - civil procedure code, section 43--cause of action--mortgage--holder of two mortgages on the same property suing separately on each. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees..........on the 10th of may 1893, was brought for the enforcement of the mortgage of 1882, and in thi3 suit the plaintiffs seek a decree for sale under section 88 of act no. iv of 1882. the first court dismissed the suit, applying section 43 of act no. xiv of 1882 and section 85 of act no. iv of 1882. the application of section 43 had reference to the previous suit. what application section 85 of act no. iv of 1882 could have had to this case it is impossible to say: all the necessary parties were before the court. the plaintiffs appealed and the court of first appeal dismissed their appeal on the same grounds. from that decree dismissing their appeal this appeal has been brought.2. each suit was a suit for the enforcement of the security which was given for the debt. consequently each suit.....
Judgment:

John Edge, C.J.

1. This appeal has been referred to the Full Bench. The plaintiffs were mortgagees under a mortgage of the 2lstof October 1878. On that mortgage they obtained, on the 2nd of December 1896, a decree for sale under Section 88 of the Transfer of Property Act. Before they brought the suit in which they obtained that decree the plaintiffs had become assignees of a mortgage of the 1st of August 1882, which was made to a third party by the same mortgagor and which mortgaged the same property as that which was mortgaged by the mortgage of the 21st of October 1878. The mortgage of 1882 was a mortgage by which it was agreed that the amount of the mortgage debt should be payable on demand. The present suit, which was brought on the 10th of May 1893, was brought for the enforcement of the mortgage of 1882, and in thi3 suit the plaintiffs seek a decree for sale under Section 88 of Act No. IV of 1882. The first Court dismissed the suit, applying Section 43 of Act No. XIV of 1882 and Section 85 of Act No. IV of 1882. The application of Section 43 had reference to the previous suit. What application Section 85 of Act No. IV of 1882 could have had to this case it is impossible to say: all the necessary parties were before the Court. The plaintiffs appealed and the Court of first appeal dismissed their appeal on the same grounds. From that decree dismissing their appeal this appeal has been brought.

2. Each suit was a suit for the enforcement of the security which was given for the debt. Consequently each suit was a suit in respect of which the cause of action was different from the cause of action in the other. Section 43 of the Code of Civil Procedure could have no application to such a case as this. This is conceded by the learned advocate for the respondents. So far as we are aware there is nothing in the Code of Civil Procedure or in the Transfer of Property Act which prevents a holder of two independent mortgages over the same property, who is not restrained by any covenant in either of them, from obtaining a decree for sale on each of them in a separate suit. Here the plaintiffs were entitled to obtain their decree for sale on the mortgage of 1878. It appears to us that their having obtained that decree can be no bar to their right to obtain a decree for sale on the mortgage of 1882. What benefit the two decrees will be to the plaintiffs it is difficult to see, except that the plaintiffs may execute one of these decrees by sale of the property, and, if there is a surplus arising from the sale, they may probably attach that surplus in execution of the other decree. One thing is quite clear, that the plaintiffs cannot sell the property twice over, and they cannot sell under the second decree subject to the first. That would be selling the equity of redemption, a right which is not acknowledged or recognized by Act No. IV of 1882, and would be a mischief which has been struck at by Section 99 of that Act. This Court in Mata Din Kasodhan v. Kazim Husain I.L.R. 13 All. 432, which has been followed in many other cases, has recognized that the intention of the Legislature was to put an end to the abuses which existed before Act No. IV of 1882 came into force, and that there can be no sale of the equity of redemption apart from the property itself at the instance of the mortgagee.

3. We allow this appeal with costs, and we set aside the decrees of the Lower Appellate Court and of the Court of First Instance with costs and remand this case under Section 562 of the Code of Civil Procedure to the Court of First Instance to be disposed of on the merits.


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