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Harjas Rai and anr. Vs. Rameshar - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All354
AppellantHarjas Rai and anr.
RespondentRameshar
Excerpt:
execution of decree - sale in execution--stay of sale upon payment into court of decretal amount and costs--civil procedure code, section 291,--act no. iv of 1882 (transfer of properly act) section 89. - - i may mention that there were three other mortgages over the same property held by the present plaintiff respondent rameshar, and that rameshar was in compliance with section 85 of the transfer of property act made a party to the suit on the mortgage of 1870. as subsequent incumbrancer he could have redeemed within the period given by the decree under section 88, but he failed to do so......the sale.' here it is admitted that a sufficient amount has been paid in to satisfy the decree for sale held by the defendant appellant kure. that being so, and in view of the ruling just cited. i cannot say that the subordinate judge was wrong in giving the plaintiff respondent a decree for sale of the property mortgaged to him under his mortgage of february 1892. the appeal therefore fails on that point. another question was raised on behalf of the appellant, harjas rai. he had in december 1894, deposited in court under section 83 of act no. iv of 1882 the amount due to rameshar on his mortgage of february 1892. notices as required by law were duly served upon rameshar, who took no notice of them. the court for some unknown reason rejected the application which had been made to it.....
Judgment:

Burkitt, J.

1. On the 13th of August 1870, one Chajju executed a mortgage of the property in suit to one Nathu Singh. A suit for sale was brought in July 1895, and after decree an order absolute for sale was passed on the 14th of November 1895. Under the order absolute the mortgagor's right to redeem became extinguished. That order absolute for sale is now vested by transfer in the appellant Kure. I may mention that there were three other mortgages over the same property held by the present plaintiff respondent Rameshar, and that Rameshar was in compliance with Section 85 of the Transfer of Property Act made a party to the suit on the mortgage of 1870. As subsequent incumbrancer he could have redeemed within the period given by the decree under Section 88, but he failed to do so. I may also add that no sale has yet taken place under the order absolute of November 1895. Subsequently Rameshar, the present plaintiff respondent, brought a suit for sale on the three mortgages he held, impleading under Section 85 the defendant appellant Kure as transferee of the decree enforcing the prior incumbrance, and he also impleaded Harjas Rai, who had purchased the property by private sale in May 1893. At the game time the plaintiff respondent, inasmuch as he could not bring the property to sale without discharging the prior incumbrance held by Kure, paid into Court the amount due on Kure's incumbrance, expressing the payment to be made to the credit of Kure in discharge of his incumbrance. It is admitted by Kure's vakil that money was so paid in to his credit. The Lower Appellate Court found that two of the plaintiff's mortgages had been discharged and gave him a decree for sale on the third only. Kure now appeals contending that the payment into Court to his credit was improperly made, it being made in the plaintiff's suit and not in Kure's suit, and also because it was made after the expiry of the two months fixed by the decree of July 1895. His contention is that the right to redeem is extinguished. Whether Kure, appellant, can now proceed to sell the property is hardly worth considering, seeing that if he were to do so he would at once be met by the admitted fact that the debt to recover which the property could be sold under the order absolute has now been paid into Court. In the recent case of Raja Ram Singhji v. Ghunni Lal I.L.R. 19 All. 205, it was held that 'Section 291 of Act No. XIV of 1882 must be taken to have modified Section 89 of Act No. IV of 1882 when the debt and costs (including the costs of the sale) are tendered to the officer conducting the sale, or when it is proved to his satisfaction that the amount of such debt and costs had been paid into the Court that ordered the sale.' Here it is admitted that a sufficient amount has been paid in to satisfy the decree for sale held by the defendant appellant Kure. That being so, and in view of the ruling just cited. I cannot say that the Subordinate Judge was wrong in giving the plaintiff respondent a decree for sale of the property mortgaged to him under his mortgage of February 1892. The appeal therefore fails on that point. Another question was raised on behalf of the appellant, Harjas Rai. He had in December 1894, deposited in Court under Section 83 of Act No. IV of 1882 the amount due to Rameshar on his mortgage of February 1892. Notices as required by law were duly served upon Rameshar, who took no notice of them. The Court for some unknown reason rejected the application which had been made to it under Section 83. Harjas Rai subsequently withdrew the money out of Court. The whole matter therefore falls to the ground. By his own stupidity Harjas Rai has lost a complete answer to Rameshar's suit, and for that he has only himself to thank. I dismiss the appeal with costs.


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