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Thakur Dharam Singh Vs. Muhammad Husen Ali Khan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1896)ILR18All31
AppellantThakur Dharam Singh
RespondentMuhammad Husen Ali Khan
Excerpt:
act no. iv of 1882 (transfer of property act), section 88 - suit for sale on a mortgage--purchase at auction sale by decree-holder--further execution sought against other property comprised in the mortgage--amount for which credit is to be given to the mortgagor. - .....out of proceedings in execution of a decree obtained by the respondent. it was a decree for the sale of mortgaged property, passed under section 88 of act no. iv of 1882. a part of the property was sold by auction, and was purchased by the decree-holder himself with the leave of the court granted under section 294 of act no. xiv of 1882. the proceeds of the sale not having sufficed to satisfy the decree, the decree-holder has applied for the sale of the remainder of the mortgaged property, and the court below has granted his application. it is contended on behalf of the appellant, judgment-debtor, that the decree-holder is not entitled to bring the remainder of the mortgaged property to sale without taking into account the actual market value of the property sold, and showing that.....
Judgment:

Banerji, J.

1. This appeal arises out of proceedings in execution of a decree obtained by the respondent. It was a decree for the sale of mortgaged property, passed under Section 88 of Act No. IV of 1882. A part of the property was sold by auction, and was purchased by the decree-holder himself with the leave of the Court granted under Section 294 of Act No. XIV of 1882. The proceeds of the sale not having sufficed to satisfy the decree, the decree-holder has applied for the sale of the remainder of the mortgaged property, and the Court below has granted his application. It is contended on behalf of the appellant, judgment-debtor, that the decree-holder is not entitled to bring the remainder of the mortgaged property to sale without taking into account the actual market value of the property sold, and showing that after deducting such value out of the decretal amount there was still a balance due to him. In support of his contention Mr. Reid has cited Hart v. Tara Prasanna Mukerji I.L.R. 11 Cal. 718; Ballam Das v. Amar Raj I.L.R. 12 All. 537, Krishnasami Ayyar v. Janakiammal I.L.R. 18 Mad. 153 and Sumera Kuar v. Bhagwant Singh Weekly Notes 1895 p. 1.

2. I am of opinion that the contention is unsound, and that the cases cited are distinguishable from the present case.

3. Where a mortgagee purchases the mortgaged property subject to a mortgage held by himself, that is, where he purchases the bare equity of redemption, he is undoubtedly liable to account for the actual value of the property when he seeks to recover his mortgage-money by sale of other property of the mortgagor. The reason for this is dear. A mortgagee who purchases only the equity of redemption pays for the property, not its actual value, but only the value of the equity of redemption. In other words, he pays for the property the difference between its actual value as unincumbered property and the amount of the mortgage. In such a case the mortgagee cannot equitably be allowed to throw the whole burden of the mortgage-debt on other property of the mortgagor, and he must account for the real value of the mortgaged property purchased by himself. But where the mortgaged property is sold in satisfaction of a decree obtained on the mortgage, and the mortgagee purchases the property with the leave of the Court, he stands on the same footing as any other purchaser, and acquires in the property the rights both of the mortgagor and the mortgagee. Such a purchase cannot prejudicially affect the mortgagor, and does not raise any equity in his favour. It has been held by their Lordships of the Privy Council in Mahabir Pershad Singh v. Macnaghten I.L.R. 16 Cal. 682, that leave to bid puts a mortgagee in the same position as any independent purchaser, and in such a case the mortgagee by his purchase does not become a trustee for the mortgagor. A mortgagee, therefore, who purchases the mortgaged property with the leave of the Court in execution of a decree for sale passed in respect of his mortgage is only liable to give credit for the amount of the purchase-money, and is entitled to seek out execution for the balance of the decretal amount due to him. I am supported in this opinion by the rulings of the Calcutta High Court in Sheonath Doss v. Janki Prosad Singh I.L.R. 16 Cal. 132 and Gunga Pershad v. Jawahir Singh I.L.R. 19 Cal. 4. In Sumera Kuar v. Bhagwant Singh Weekly Notes 1895 p. 1, the mortgagee had purchased a moiety of the mortgaged property in execution of a decree for money obtained by a third party after giving notice of his own mortgage, and he subsequently sued to enforce his mortgage against the other moiety of the mortgaged property. It was held that he could not be permitted to throw the whole burden of the mortgage-debt on the other moiety of the mortgaged property.

4. In Baliam Das v. Amar Raj I.L.R. 12 All. 337, the mortgagee obtained two decrees on separate bonds for the sale of the same property and purchased the property in execution of one of the decrees. His purchase was subject to liability for the amount of the decree. That case has therefore no bearing on the present question.

5. The other two cases cited by Mr. Reid are distinguishable, as in those cases the equity of redemption only was purchased by the mortgagee.

6. I am of opinion that the Court below has rightly held that the respondent decree-holder was entitled to take out execution for the balance which remained due to him after giving credit for the amount of the proceeds of the sale at which he had purchased a part of the mortgaged property, and I dismiss this appeal with costs.


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