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Chunni Lal Vs. Ganga Prasad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1896)ILR18All113
AppellantChunni Lal
RespondentGanga Prasad
Excerpt:
mortgage - mortgage by mortgagee of his rights as such but without assignment--rights of sub-mortgagee as against original mortgagee. - - we fail to see upon what principle any such order could have been made.john edge, kt., c.j. and burkitt, j.1. rupa and others mortgaged immoveable property to nand kishore. nand kishore made a sub-mortgage to chunni lal, the present plaintiff, i.e., purported to mortgage to him his rights as mortgagee, but did not assign his mortgage to him. chunni lal has brought this suit for sale of the property mortgaged by rupa and others; in other words, he seeks to get the debt due from nand kishore to him paid by sale of the property of rupa and others, who were not his mortgagors. he has obtained a decree for money against nand kishore, and he has also obtained a decree for sale of the property mortgaged by rupa and others. ganga prasad, who was a party to the suit, was a mortgagee of some of the lands from rupa and others subsequent to the mortgage to nand kishore......
Judgment:

John Edge, Kt., C.J. and Burkitt, J.

1. Rupa and others mortgaged immoveable property to Nand Kishore. Nand Kishore made a sub-mortgage to Chunni Lal, the present plaintiff, i.e., purported to mortgage to him his rights as mortgagee, but did not assign his mortgage to him. Chunni Lal has brought this suit for sale of the property mortgaged by Rupa and others; in other words, he seeks to get the debt due from Nand Kishore to him paid by sale of the property of Rupa and others, who were not his mortgagors. He has obtained a decree for money against Nand Kishore, and he has also obtained a decree for sale of the property mortgaged by Rupa and others. Ganga Prasad, who was a party to the suit, was a mortgagee of some of the lands from Rupa and others subsequent to the mortgage to Nand Kishore. Ganga Prasad has paid off Nand Kishore's mortgage and has thus become sole mortgagee of the lands in question as far as the parties to this suit are concerned. He has appealed against so much of the decree below as was a decree for sale of the property mortgaged by Rupa and others. It is inconceivable to us how any Subordinate Judge could have given the plaintiff a decree for sale under Section 88 of Act No. IV of 1882 of property which was not mortgaged to him. The sole right of Chunni Lal was to get a decree for money against Nand Kishore, and then under that decree he might possibly have attached, if it had not been paid off, the mortgage held by Nand Kishore. The granting of a decree for sale is not the only extraordinary part of the decree of the Court below. The Court actually made an order for an injunction restraining the mortgagors from discharging by payment the mortgage which they had made. We fail to see upon what principle any such order could have been made. We dismiss the appeal with costs, and set aside so much of the decree below as decreed a sale and an injunction.


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