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Ashfaqul Nabi Khan Vs. K.B. Syed Raza HussaIn and ors. - Court Judgment

LegalCrystal Citation
Subject Property; Civil
CourtAllahabad
Decided On
Reported inAIR1948All62
AppellantAshfaqul Nabi Khan
RespondentK.B. Syed Raza HussaIn and ors.
Excerpt:
.....various other grounds, which are no longer pressed before us. the case, therefore, clearly came under the provisions of section 6 (c), temporary postponement of execution of decrees act......learned counsel is clause (c) which is in these terms:nothing herein contained shall...apply to a mortgage decree sought to be executed by sale of the mortgaged property in the hands of a subsequent transferee who has taken the transfer subject to the mortgage on the basis of which such decree has been obtained.7. it is difficult to see how this sub-section helps learned counsel. his argument is that when he purchased the property at auction, it must be deemed that he purchased it subject to the mortgage? every subsequent transfer is subject to a prior incumbrance and if that was the intention of the legislature, the words 'who has taken the transfer subject to the mortgage on the basis of which such decree has been obtained,' appear to be redundant. it appears to us that the.....
Judgment:

Malik, J.

1. This appeal has teen filed by Asbfaqul Nabi Khan, who bad objected to the execution of a decree on the ground that it was barred by limitation and on various other grounds, which are no longer pressed before us.

2. On 5-9-1917 one Mohammad Saeed had executed a mortgage for Rs. 4,500 in favour of Zakir Husain. Zakir Husain died leaving a number of heirs and his widow, Mt. Sughra Begum, filed a Suit No. 18 of 1929, on her behalf and on behalf of the other heirs, whom she impleaded as pro forma defendants. The suit was decreed on 18-2-1930 and the final decree for sale was passed on 13-10-1933. The appellant was one of the defendants and he had been impleaded as a subsequent purchaser of a part of the mortgaged property. He contested the suit on the ground that he had purchased a portion of the mortgaged property in execution of a simple money decree No. 79 of 1922 and his share of the liability should, therefore, be apportioned and he should be liable to pay only his proportionate share of the debt. The Court refused to apportion the liability and held that the entire mortgaged property was liable to pay the mortgage debt.

3. An application for execution was filed by Mt. Sughra Begum on 2-10-1936. She applied for the sale of the entire mortgaged property in the hands of the mortgagors and their representatives the appellant and certain others. The execution application remained pending for about 2 years and was dismissed on 9-12-1988.

4. Mt. Sughra Begum died and this application for execution was filed on 15-12-1942 by her daughter, Ruqqaya Begum, under Order 21, Rule 15, Civil P.C., for the benefit of the heirs and the legal representatives of Zakir Husain.

5. The case of the decree-holder was that the period during which the Temporary Postponement of Execution of Decrees Act 10 [x] of 1937 was in force had to be excluded in computing the period of limitation for the application as Borne of the judgment-debtors were agriculturists and it was, therefore, not possible to execute the decree during the period the said Act had remained in force.

6. It is admitted by the appellant that the mortgagors, who were defendants 1 to 8, were agriculturists but it is said that the appellant was not an agriculturist. The appellant, there fore, says that it was possible to execute the decree as against him by reason of the provisions of Section 6(c), Temporary Postponement of Execution of Decrees Act, Act (10 [X] of 1937). Section 3 of the said Act provides that:

All proceedings in execution of a decree for...sale in enforcement of a mortgage passed by a civil Court on the basis of a liability incurred before the passing of this Act, in which a judgment-debtor or any one of the judgment-debtors is at the date of the passing of this Act, an agriculturist, shall be stayed during the period this Act shall remain in force....

It being admitted that the judgment-debtors 1 to 8 were agriculturists, the decree could not be executed against any judgment-debtor by reason of the provisions of Section 3 quoted above, unless the case came under one of the exceptions mentioned in Section 6. In Section 5 of the Act the period, during which the execution of a decree is stayed under Section 5, has to be excluded unless the case is covered by Section 6. The only portion of Section 6 relied on by learned Counsel is Clause (c) which is in these terms:

Nothing herein contained shall...apply to a mortgage decree sought to be executed by sale of the mortgaged property in the hands of a subsequent transferee who has taken the transfer subject to the mortgage on the basis of which such decree has been obtained.

7. It is difficult to see how this sub-section helps learned counsel. His argument is that when he purchased the property at auction, it must be deemed that he purchased it subject to the mortgage? Every subsequent transfer is subject to a prior incumbrance and if that was the intention of the Legislature, the words 'who has taken the transfer subject to the mortgage on the basis of which such decree has been obtained,' appear to be redundant. It appears to us that the Legislature intended that the benefit of this Act should not be given to a transferee who has undertaken to pay up the mortgage. It was not intended that a transferee should be given protection against the terms of the contract entered into by him with his transferor. The same intention appears in the Debt Redemption Act, which was also passed for the protection of agriculturist debtors. In Section 2, Sub-section (9), Debt Redemption Act, defining the word 'loan' it is said that it does not include a debt the liability for the repayment of which has, by a contract with the borrower by sale in execution of a decree, been transferred to another person. In a Full Bench decision of this Court, Saran Singh v. Miththan Lal : AIR1946All174 , it was held that the transfer of liability here meant the transfer of the entire liability and where the whole of the mortgage money was not left with the transferee, it could not be said that there was a transfer of liability and the mortgagor had been relieved of his liability for payment. We are, therefore, inclined to the view that the words 'who has taken the transfer subject to the mortgage' do not refer to the legal liability of a subsequent transferee for payment of his proportionate share of the liability having the right to claim contribution from the other debtors, but they refer to a case where the transferee has undertaken to pay the entire amount of the previous mortgage debt.

8. Learned Counsel has relied on certain observations in a Full Bench decision of this Court, Radha Kishan v. Umrai Singh : AIR1943All316 . That was a case where two persons had executed a mortgage. After the execution of the mortgage they sold a part of the mortgaged property to one Umrai Singh subject to the liability to pay the entire mortgage debt. The mortgagee obtained his decree against the mortgagors and Umrai Singh, but he executed his decree only against Umrai Singh and only against the property which had been transferred to him. The other judgment-debtors, who were the original mortgagors, were not even made parties to the execution proceedings. The case, therefore, clearly came under the provisions of Section 6 (c), Temporary Postponement of Execution of Decrees Act. The point urged in that case, by learned Counsel for the appellant, was that Section 6 (c) gives the decree-holder a right to proceed against the mortgaged property in, the hands of subsequent transferee and if he has not sought to execute his decree by the sale of such property, Section 6, Clause (c) has no application and in that case he would be entitled to the benefit of Section 3 read with Section 5. The question whether Section 6 (c) would apply to a case where only part of the liability under a mortgage had been transferred was not before the Full Bench. We cannot, therefore, hold that a few stray sentences here and there in the Full Bench decision-mean that their Lordships applied their mind to this question and intended to lay down the law on the point in favour of the appellant. We are, therefore, of the opinion that there is no force in this appeal and we dismiss it with costs.


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