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Phulmani ChaudhraIn Vs. Nageshar Prasad and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.670
AppellantPhulmani Chaudhrain
RespondentNageshar Prasad and ors.
Excerpt:
mortgage - prior and subsequent mortgagees--sale of mortgaged property in execution of prior mortgagee's decree--subsequent mortgagee not party thereto--amount to be paid by subsequent mortgagee at the time of redemption. - - 700 is clearly wrong. we fail to see on what principle she is entitled to receive merely the sum which was paid at the auction sale whether that was a high price or a low price. there is nothing on the record to show whether or not the decree of the 15th of march, 1887, has been satisfied or in what manner it has been satisfied if at all......and mahadani. his share in mauza kakrahu was 14-annas. on the 9th of july, 1880, he mortgaged 8 anna share in mauza kakrahu and a share in mauza mahadani to sheo charan misra, predecessor-in-title of the present plaintiffs-respondents for a sum of rs. 555. on the 1st of december, 1883, he mortgaged 8 anna share of mauza kakrahu together with shares in mauza mania ramnapur, benipur, and belghata, to one jiwan das, for the sum of rs. 11,500. on the 16th of june, 1885, he gave a second mortgage to sheo charan misra of the whole 14-anna share in mauza kakrahu and a share in mauza parsu for the sum of rs. 2,000. this rs. 2,000 consisted of rs. 1,500, due on the bond of 9th july, 1880, and rs. 500, cash. jiwan das brought a suit on his bond of 1883 without making sheo charan misra a party,.....
Judgment:

1. The facts of the case out of which this appeal has arise a are as follows: One Agar Singh was the owner of certain shares in seven villages, namely, Mania, Ramnapur, Kakrahu, Benipur, Belghata, Parsu, and Mahadani. His share in mauza Kakrahu was 14-annas. On the 9th of July, 1880, he mortgaged 8 anna share in mauza Kakrahu and a share in mauza Mahadani to Sheo Charan Misra, predecessor-in-title of the present plaintiffs-respondents for a sum of Rs. 555. On the 1st of December, 1883, he mortgaged 8 anna share of mauza Kakrahu together with shares in mauza Mania Ramnapur, Benipur, and Belghata, to one Jiwan Das, for the sum of Rs. 11,500. On the 16th of June, 1885, he gave a second mortgage to Sheo Charan Misra of the whole 14-anna share in mauza Kakrahu and a share in mauza Parsu for the sum of Rs. 2,000. This Rs. 2,000 consisted of Rs. 1,500, due on the bond of 9th July, 1880, and Rs. 500, cash. Jiwan Das brought a suit on his bond of 1883 without making Sheo Charan Misra a party, and obtained a decree on the 15th of March, 1887. In execution of that decree, on the 20th of June, 1893, an 8-anna share in mauza Kakrahu, together with the shares in mauza Ramnapur and Belghata, was sold at auction and purchased by Musammat Karamraji Kuari, the wife of Agar Singh, for the sum of Rs. 700. On the 10th of June, 1895, Karamraji Kuari sold an 8-anna share in mauza Kakrahu to the appellant-defendant for the sum of Rs. 4,100. The heirs of Sheo Charan Misra have now sued on the bond of 16th June, 1885, and have made the appellant-defendant a party to the suit and seek to bring to sale the whole 14-anna share of mauza Kakrahu and the share in mauza Parsu. The actual amount due on their bond was over three lakhs of Rupees. The amount due in respect of the sum of Rs. 1,500 (which was the debt due on the old bond of 1880) would come to over two lakhs of Rupees. The plaintiff, however, sued only to recover Rs. 30,000, and the lower Court has held that this is a part of the debt due in respect of the old mortgage of 1880. The appellant-defendant pleaded that the bond of 1883 was prior to that of 1885, and that, there fore, the plaintiffs could not bring to sale an 8-anna share of mauza Kakrahu unless they paid the whole amount due on the mortgage of 1883 or at least Rs. 4,100 the price which she had paid to Karamraji Kuari, for this 8-anna share. The lower Court held that out of this 8-anna share mortgaged in 1883, 6-anna was not mortgaged in the bond of 1880, but that the remaining 2-anna was a part of that 3-anna share which was mortgaged under that bond, decreed the plaintiff's claim, and made the sale of this 6-anna share in mauza Kakrahu conditional upon the plaintiffs paying the sum of Rs. 700, to the defendant-appellant. The defendant-appellant appeals and urges that she is entitled to receive the sum of Rs. 4,100 before her 6-anna share can be put to sale. In our opinion the lower Court's order in regard to the payment of Rs. 700 is clearly wrong. In the first place Rs. 700 is not the price which was actually paid at the auction-sale for this 6-anna, but the price paid for 8-annas share in this village and shares in two other villages. In the second place the price paid at that auction-sale is not a true measure, in our opinion, of what the plaintiffs-respondents ought to pay in order to redeem the prior mortgage on the 6-anna share. The fact that Sheo Charan Misra was no party to (he former suit which terminated in the decree of 15th March, 1887, left in Sheo Charan Misra the right to redeem the prior mortgage of the property. The right of the present defendant-appellant is the right to have the mortgage redeemed. We fail to see on what principle she is entitled to receive merely the sum which was paid at the auction sale whether that was a high price or a low price. This was the view taken by a Bench of this Court in Dip Narayan Singh v. Hira Singh 19 A. 527 wherein it was held that a subsequent mortgagee is not entitled to redeem a prior mortgage by simply paying the price for which the prior mortgagee may have purchased the property at an auction-sale held in execution of a decree obtained by him without joining the subsequent mortgagee as party; but such subsequent mortgagee must, if he wishes to redeem, pay to the prior mortgagee the full amount due on his mortgage. The only difficulty in applying this principle to the present case is due to the fact that the prior mortgagee Jiwan Das and all those persons who may have purchased the mortgaged property in execution of his decree have not been made parties to this suit. There is nothing on the record to show whether or not the decree of the 15th of March, 1887, has been satisfied or in what manner it has been satisfied if at all. There is nothing to show whether the other properties mortgaged were sold or not, and if sold, to whom and for what amounts. No objection was taken by the defendant-appellant in the lower Court as to the nonjoinder of parties, and in this appeal she merely claims that she is entitled to receive the price which she paid to Karamraji Kuari (not for the 6-anna share) but for the 8-anna share. In these circumstances, it seems to us that the only equitable method of doing justice between the parties is to allow the plaintiffs-respondents to bring this 6-anna share in mauza Kakrahu to sale conditional on their paying to the appellant that portion of the mortgage debt due on the bond of 1883 which can properly be attributed to the 6-anna share in dispute. In order to enable us to do this we must have findings by the lower Court upon the following points which we refer as issues under Order XLI, Rule 25 of the Code of Civil Procedure. (1) What was the total amount of the debt due on the bond of 1883 at the date of the sale, namely, the 20th of June, 1893? (2) What was the value of the property mortgaged in the bond of 1883 other than the 6-anna share of mauza Kakrahu on the date of the sale? And what was the value of the 6-anna share in mauza Kakrahu? (3) What was the proportionate part of the mortgage debt which could properly be attributed to the 6 anna share now in dispute? Fresh evidence may be taken, and the case will be put up on return of findings. Ten days will be allowed for objections.


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