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Gopi Nath Vs. Gobind Missir and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1934All360
AppellantGopi Nath
RespondentGobind Missir and ors.
Excerpt:
- - i am satisfied that the lower appellate court has arrived at the right conclusion. the transfer in favour of gopi nath was clearly void and he had no right to insist that he was entitled to pay the decretal amount......second appeal. it arises in the following circumstances : sudarshan prasad, the grandfather of gopi nath, appellant before me, held two simple money decrees against one harakh ram jaini. harakh ram jaini owned certain mortgagee rights in certain occupancy holdings on the basis of two mortgage deeds executed by a man named sarju singh in the years 1890 and 1912. the latter mortgage deed was a deed by way of further charge and could be redeemed along with the mortgage of 1890. on the 14th of june 1923, sarju singh executed a mortgage deed with respect to be holding in favour of gopi nath for a sum of rs. 2,100 and out of the mortgage money left a sum of rs. 1,600 for the redemption of the two mortgages of 1890 and 1912. two days after the execution of this mortgage, viz., on the 16th.....
Judgment:

Iqbal Ahmad, J.

1. This appeal has been filed as an execution second appeal. It arises in the following circumstances : Sudarshan Prasad, the grandfather of Gopi Nath, appellant before me, held two simple money decrees against one Harakh Ram Jaini. Harakh Ram Jaini owned certain mortgagee rights in certain occupancy holdings on the basis of two mortgage deeds executed by a man named Sarju Singh in the years 1890 and 1912. The latter mortgage deed was a deed by way of further charge and could be redeemed along with the mortgage of 1890. On the 14th of June 1923, Sarju Singh executed a mortgage deed with respect to be holding in favour of Gopi Nath for a sum of Rs. 2,100 and out of the mortgage money left a sum of Rs. 1,600 for the redemption of the two mortgages of 1890 and 1912. Two days after the execution of this mortgage, viz., on the 16th of June 1923, Harakh Ram Jaini transferred his mortgagee rights to one Gobind Missir along with certain-other propertiRs. Two days after this transfer, viz., on 18th June 1923, Sudarshan Prasad, the decree-bolder attached the mortgagee rights of Harakh Ram Jaini, the judgment-debtor. Gobind Missir filed objections that were dismissed and then he filed a regular suit for a declaration that the mortgagee rights purchased by him were not liable to sale in execution of the simple money decrees held by Sudarshan Prasad. The suit was decreed by the trial Court but was dismissed by the lower appellate Court and the decision of the lower appellate Court was on second appeal confirmed by this Court. This Court held that the transfer of the mortgagee rights was voidable at the option of the decree-bolder.

2. After the decision of this Court there was a scramble between Gopi Nath the grandson of the decree bolder, and Gobind Missir, the transferee of the mortgagee rights in the execution Court. Bach' wanted to pay the decretal amount and denied the right of the other to pay the same. The trial Court could have put aitend to this controversy by telling both Gopi Nath and Gobind Missir that they had no locus standi to have their controversy decided by the execution Court as neither of them was a party to the decree. It however proceeded to decide the dispute between them and came to the conclusion that Gopi Nath was entitled to pay the decree of Sudarshan Prasad. There was an appeal by Gobind Missir in the lower appellate Court. It is to be noted here that no appeal lay in the lower appellate Court. The lower appellate Court however entertained the appeal and came to the conclusion that Gobind Missir was entitled to pay the decree of Sudarshan Prasad. It rightly pointed out that the transfer in favour of Gobind Missir was not void but was only voidable at the option of the decree-holder and this option of the decree.bolder could be put an end to by Gobind Missir paying up his decree. It also rightly held that the transfer in favour of Gopi Nath was void as the transfer of an occupancy holding was prohibited by the Agra Tenancy Act, Act No. 2 of 1901.

3. Against this appellate decree of the lower appellate court the present appeal has been filed in this Court. I am satisfied that the lower appellate court has arrived at the right conclusion. The transfer in favour of Gopi Nath was clearly void and he had no right to insist that he was entitled to pay the decretal amount. As already observed, it was open to Gobind Missir to pay the decretal amount. He has done so, and, therefore, the validity of the sale-deed in his favour cannot now be assailed by the decree-holder. The sale-deed is binding as between Gobind Missir and the judgment-debtor. The appeal is dismissed with costs.


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