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Haji Tanwir Ahmad Vs. Hafiz Maqbul Ahmad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1945All318
AppellantHaji Tanwir Ahmad
RespondentHafiz Maqbul Ahmad and anr.
Excerpt:
.....of the subordinate judge of bareilly in the two mortgage suits of 1933 having been satisfied, the decrees passed by the calcutta high court must also be taken to have been completely wiped out. strong reliance has, however, been placed on a decision of the court of appeal in england reported in aman v. some time later a brought the action, out of which the appeal arose, upon the judgment of 1912 to recover the amount thereof as well as the interest which had accrued since the date of the judgment. the argument is that the decrees passed by the calcutta high court were only additional securities for the payment of certain sum of money due under the mortgage deeds and that the decrees passed by the bareilly court in the mortgage suits having been satisfied, that additional security also..........appeals have arisen out of two applications made by the appellant for the execution of two money decrees passed on 30th june 1932, by the high court of judicature at fort william in bengal, in the exercise of its ordinary civil jurisdiction, in two suits, viz., suit no. 990 of 1932 and suit no. 1047 of 1932. the applications for execution were only in respect of the costs awarded to the appellant under those decrees. the munsif allowed the applications. on appeal by the judgment-debtors the learned civil judge of bareilly has dismissed the applications on the sole ground that the applications for executions were barred by limitation. it appears that the judgment-debtors respondents had executed two mortgage deeds in favour of the appellant, one dated 6th february 1929, and the other.....
Judgment:

Verma, J.

1. These two second appeals have arisen out of two applications made by the appellant for the execution of two money decrees passed on 30th June 1932, by the High Court of Judicature at Fort William in Bengal, in the exercise of its ordinary civil jurisdiction, in two suits, viz., suit No. 990 of 1932 and suit No. 1047 of 1932. The applications for execution were only in respect of the costs awarded to the appellant under those decrees. The Munsif allowed the applications. On appeal by the judgment-debtors the learned Civil Judge of Bareilly has dismissed the applications on the sole ground that the applications for executions were barred by limitation. It appears that the judgment-debtors respondents had executed two mortgage deeds in favour of the appellant, one dated 6th February 1929, and the other dated 19th February 1929. The first deed was for Rs. 10,000 and the latter one was for RS. 3555-12-9. It appears to have been common ground in the Courts below that the suits in the Calcutta High Court had been filed with the object of obtaining money decrees in respect of the amounts-principal and interest-due under these two mortgage deeds up to the date of the institution of those suits, in enforcement of the personal covenant which apparently was incorporated in both the deeds. The decrees of the Calcutta High Court were based on compromises filed by the parties in both the suits. The terms of settlement in both the suits were as follows:

(1) Decree for amount claimed with interest (amounting to Rs. 13,655-1-2 in suit No. 990 of 1932 and Rs. 5,028-7-3 in suit No. 1047 of 1932,) including interest up to date and fee for registration.

(2) Plaintiff firm not to execute decree until it has exhausted the securities covered by the mortgage executed by defendants (on 6th February 1929 in suit No. 990 of 1932 and on 19th February 1929, in suit No. 1047 of 1932).

(3) Defendants to pay costs of this suit on scale No. 1 including costs of application for final judgment.

(4) Each party to pay its own costs of the application for stay, certified by counsel.

2. In 1933 the appellant filed two suits (NOS. 11 and 12 of 1933) in the Court of the subordinate Judge of Bareilly for the enforcement of his mortgage security under the two deeds. These mortgage suits also ended in compromises. In suit No. 11 of 1933 the parties agreed that the plaintiff-mortgagee's claim be decreed for a sum of Rs. 3000 and that the defendants-mortgagors be allowed to pay up that amount in certain instalments. It was further prayed that a decree under Order 34, Rule 5 be drawn up. In suit NO. 12 of 1933 the parties agreed that a portion of the amount due to the mortgagee should be liquidated by the transfer of certain property to him and the manner in which these transfers were to be executed was laid down. It was further agreed between the parties that a decree for Rs. 4000 be passed in favour of the plaintiff-mortgagee and the defendants-mortgagors be allowed to pay up that amount in certain instalments. The parties prayed that a decree under Order 34, Rule 5, be passed in respect of this amount. The decrees that were passed by the Court of Subordinate Judge of Bareilly in pursuance of these compromise petitions are not before me. It may be presumed, however, that those decrees were in accordance with the compromise petitions. It appears to have been common ground between the parties in the Courts below that the amounts which had to be paid by the defendants-mortgagors by instalments had been duly paid and that the decree-holder the appellant before me-had duly certified in Court the payment of those amounts. The. present applications for execution were filed in April 1942, after the necessary preliminary proceedings had been taken in the Calcutta High Court for the transfer of the decrees passed by that Court, and were, as I have already stated, for the recovery of the costs awarded by the decrees of the Calcutta High Court. The application out of which Second Appeal No. 102 of 1943 has arisen was for the recovery of RS. 739-7-6 and the application out of which Second Appeal No. 103 of 1943 has arisen was for the recovery of RS. 642-1-0. These are the costs which the appellant was entitled to realise under Clause (3) of the terms of settlement mentioned above. It is conceded before me by the learned Counsel for the judgment-debtors-respondents that the decision of the lower appellate Court cannot be supported on the ground on which it rests, namely, that the applications for execution were barred by limitation. The learned Judge of the Court below obviously overlooked Article 183 of Schedule 1 to the Limitation Act.

3. The matter, however, does not end here, for the learned Counsel for the judgment debtors-respondents has sought to support the dismissal of the applications for execution on two other grounds which were taken in the memoranda of appeals filed in the lower appellate Court-but which, judging from the language of the judgment of the Court below, were not argued before that Court-and both of which were decided by that Court against the judgment-debtors. The first of these grounds is that the decree passed by the Court of the Subordinate Judge of Bareilly in the two mortgage suits of 1933 having been satisfied, the decrees passed by the Calcutta High Court must also be taken to have been completely wiped out. No Indian statute or ruling is cited in support of this argument. Strong reliance has, however, been placed on a decision of the Court of Appeal in England reported in Aman v. Southern Railway Company (1926) 1 K.B. 59In the first place, although the decisions of the English Courts are entitled to great respect as I have had occasion to observe before, they are not binding on the Courts in India. In the second place, the case relied upon is really not applicable to the case before me. The essential facts of that case were these. One M was the holder of certain debentures issued by the Freshwater, Yarmouth and Newport Railway Company. His executors, who may be decribed as B H and R recovered judgment under Section 27 of an English statute known as the Companies Clauses Act, 1863, in the King's Bench Division on 9th December 1912, for a certain sum of money, being arrears of interest on those debentures. In 1913, one A purchased the said debentures with all the arrears of interest thereon from the said executors and also took an assignment of the said judgment. Before the total amount due under the judgment was realised, an Act of Parliament (11 and 12 Geo. V, c. 55) called the Railways Act, 1921, was passed by which provision was made for the amalgamation of the principal railways in England into certain groups set out in the Schedule, one of ' which was the Southern Group. The Act also provided for the absorption into the Southern group, when formed, of the Freshwater, Yarmouth and Newport Railway Company. In due course an absorption scheme was settled by the amalgamation tribunal and that scheme came to have the force of a statute. Section 9 of the scheme was as follows:

The several persons who immediately before the date of settlement are the registered holders of the stock of the vested company described in the first column of the schedule hereto shall...on and from such date by virtue of this scheme become and be registered holders of stock of the company of the class and in the proportions specified in the said schedule in lieu of and in exchange for the stock of the vested company held by them respectively.

By 'vested company' in the scheme was meant the Freshwater, etc., Railway Company. Section 11 of the scheme was as follows:

The persons who by virtue of this scheme become the registered holder of stock of the company shall (subject to the provisions of this scheme) accept and be deemed to have accepted the stock allocated to them under this scheme in substitution for the stock of the vested company held by them and in satisfaction of all claims thereunder including any arrears of interest.

Some time later A brought the action, out of which the appeal arose, upon the judgment of 1912 to recover the amount thereof as well as the interest which had accrued since the date of the judgment. He also claimed the costs awarded to him by that judgment. The plaintiff's case was that the amounts claimed by him were not within the words of Section 11 of the scheme: 'all claims thereunder including any arrears of interest'. The trial Judge dismissed the claim so far as it related to the amount of the judgment but allowed it in respect of the interest which had accrued since the date of the judgment and of the costs awarded by that judgment. Both parties appealed and the Court of appeal dismissed the plaintiff's appeal and decreed the cross-appeal of the defendants. It was held, in agreement with the trial Judge, that the claim in respect of the amount of the judgment could not be entertained as that amount was within the words of Section 11 of the scheme: 'all claims thereunder including any arrears of interest.' It was further held that the learned trial Judge was not right in allowing the other portions of the claim as, in the opinion of the Court of Appeal, those portions also were hit by the words of 8.11 of the scheme mentioned above. Bankes L.J. began his judgment by observing that the dispute between the parties depended upon the true construction to be placed upon the words in Section 11 of the scheme. Scrutton L.J. also observed that the propriety of the plaintiff's claim turned upon two words in Section 11 of the scheme, viz., 'claims thereunder'. It is obvious to my mind that the facts of that case were wholly different from those in the present case and that the decision in that case turned upon the interpretation of certain words in a section of the absorption scheme which had the force of a statute. Learned Counsel relies, however, on certain observations which, according to him, are of a general nature, in the judgments pronounced in that case. The argument is that the decrees passed by the Calcutta High Court were only additional securities for the payment of certain sum of money due under the mortgage deeds and that the decrees passed by the Bareilly Court in the mortgage suits having been satisfied, that additional security also ceased to exist, and that therefore the costs awarded By those decrees cannot also be now recovered. It appears to me that the matter was clearly put by Eve J. He observed that the plaintiff's counsel, in dealing with the defendants' cross-appeal, had taken the point that the liability on the part of the judgment-debtor to pay interest on the judgment was an entirely new liability, and that the mortgagee was entitled to recover it from the mortgagor even though the whole of the principal and interest due under the security had in fact been paid. The learned Judge then proceeded:

That to my mind is contrary to the principles upon which these matters have always been dealt with in the Chancery Division. It has always been incumbent on the mortgagee on the taking of the account to bring into it ail that he receives under the judgment, including the interest on the judgment itself. The same reasoning applies to the costs. If the mortgagee does not recover the costs from the mortgagor under the personal judgment, he brings them into his account, and they must be paid before the mortgage is redeemed.

It is not pretended that any such thing happened in the present case. It cannot also be argued that the Courts in India are bound by the principles upon which such matters are dealt with in the Chancery Division in England. It is conceded that there is nothing to show that the appellant mortgagee included in his mortgage suits the costs that had been awarded to him by the decrees of the Calcutta High Court, or that the decrees passed by the Bareilly Court included those costs. No such allegation was ever made in the Courts below. It is clear, therefore, that these costs were not included in the mortgage suits and in the decrees passed in those suits. In these circumstances, I am of opinion that there is nothing to prevent the appellant from recovering those costs by execution of the decrees of the Calcutta High Court. Reliance was also placed! on the case in Potteries, Shrewsbury, and North Wales Railway Co. v. Minor (1871) 6 Ch. 621 which was mentioned in the judgment of Bankes L. J., in Aman v. Southern Railway Company (1926) 1 K.B. 59. A perusal of the report of that case, however, has made it clear that the liability of the mortgagor to pay the mortgagee's costs at law was admitted The decision is, therefore, no authority with regard to such costs, which is the only question that arises in the cases before me. The second ground urged is based upon Clause (2) of the terms of settlement incorporated in the decrees of the Calcutta High Court which I have quoted above. Reliance is placed on the words 'has exhausted the securities covered by the mortgage' and it is argued that, as the mortgaged properties have not been sold, the appellant was not entitled to execute any part of the decrees of the Calcutta High Court. This argument is, in my opinion, wholly without forge. The clause did not mean that the decree holder was bound to sell up the mortgaged property and was not entitled to accept payment from the mortgagors in satisfaction of his claim under the mortgage if such payment was made by the mortgagors before it became necessary to put the property to sale. As has already been stated, the patties came to terms in the mortgage suits in the Court at Bareilly and payment was made by the mortgagors in accordance with the terms agreed upon. No question of putting the property to sale now remains. Upon a true construction of the terms of settlement embodied in the decrees of the Calcutta High Court, the appellant is, in my opinion, entitled to execute those decrees in respect of the costs.

4. For the reasons given above, I allow this appeal, set aside the order of the lower appellate Court and restore the order of the Munsif dated 29th July 1942. The case will go back to the Court of the Munsif for further proceedings in execution. The appellant is entitled to his costs in this Court and in the lower appellate Court. The costs in the first Court will be governed by the order of that Court. A request has been made on behalf of the judgment-debtors-respondents that leave to appeal under the Letters Patent be granted. It appears to me, however, that the contentions raised by the appellants were wholly devoid of substance and that I shall not therefore be justified in granting leave. Leave is accordingly refused.


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