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Ram Baran Chaube and anr. Vs. Bhagwati Pandey and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1925All804; 83Ind.Cas.142; 89Ind.Cas.295
AppellantRam Baran Chaube and anr.
RespondentBhagwati Pandey and ors.
Excerpt:
civil procedure, code (act v of 1908), order xlvii, rules 1, 2 - review, application for--forum, proper--mortgage--prior and subsequent mortgagees--equity of redemption purchased by prior mortgagee--redemption, right of, exercise of--procedure. - - the plaintiff, at the hearing of the appeal, objected unsuccessfully that the appeal should have been against the preliminary decree as passed by the subordinate judge b. be that, however, as it may be, and though, the rules might have been more clearly worded, the effect of them is beyond doubt. this is the only argument that was seriously pressed before us in this connexion and there is clearly no force in it. we hold, therefore, that the learned additional district judge was clearly right in holding that b......therefore no suit by the plaintiff for redemption was possible.3. the trial court, the munsif (b. grish chander), on the 16th of february 1922, - granted a preliminary decree for redemption to the plaintiff on the basis that all accounts should be taken as to what was due to the defendants on their mortgages at the date of the auction purchase. subsequent to the passing of this preliminary decree b. grish chander was transferred to another court to act as subordinate judge in the same district. on the 16th of february 1922 he had written the judgment in the case, but his successor, b. raghunath prasad, on the same day, the 16th of february 1922, pronounced it. the next step was an application by the plaintiff, on the 18th of february 1922, to the court of the subordinate judge, which.....
Judgment:

Boys, J.

1. This is a plaintiff's appeal. It was a suit for a declaration of title that the plaintiff was mortgagee in possession of Plot No. 118 and that he was not a tenant of the defendants, and he also prayed for redemption of two simple mortgages. It appears that the original owners were Dharam Dut and Aman Dut whose heirs were Defendants Nos. 10 to 16. A simple mortgage was executed by Dharam Dut and Aman Dut in February 1876, in favour of one Debi Dayal whose heirs were represented by Defendants Nog. 1 to 8. A second mortgage, similar in all respects, was executed on the 28th of September 1876. Finally Dharam Dut and Aman Dut executed in favour of one Pabaru Sunar a usufructuary mortgage on the 22nd of May 1879. The grandson of Pabaru Sunar, Ram Nath, who was really a pro forma defendant 3rd party, sold his rights, on the 7th of August 1909, to Ram Baran Chaube and Hazari Chaube, the present plaintiffs, and got possession. On the 17th of April 1888, the heirs of Debi Dayal, the prior mortgagees, obtained a decree in respect of their two simple mortgages, but did not in their suit make the usufructuary mortgagee, the predecessor of the plaintiffs' party. Having obtained a decree for sale the heirs of Debi Dayal, whom we shall henceforward call the defendants, themselves, purchased the mortgaged property. In 1921 they sued in the revenue Court to eject the present plaintiff describing him as a tenant, and on the 4th of March 1921, the plaintiff objected that ho was really a mortgagee and ho was referred by the revenue Court to the civil Courts. He duly went to the civil Court and the present proceeding is the result. The defendants pleaded that they not in their capacity as prior mortgagees but by right of their purchase of the equity of redemption at the auction sale were entitled to redeem the plaintiff. They pleaded that they had obtained decrees which extinguished their own mortgages and therefore no suit by the plaintiff for redemption was possible.

3. The trial Court, the Munsif (B. Grish Chander), on the 16th of February 1922, - granted a preliminary decree for redemption to the plaintiff on the basis that all accounts should be taken as to what was due to the defendants on their mortgages at the date of the auction purchase. Subsequent to the passing of this preliminary decree B. Grish Chander was transferred to another Court to act as Subordinate Judge in the same district. On the 16th of February 1922 he had written the judgment in the case, but his successor, B. Raghunath Prasad, on the same day, the 16th of February 1922, pronounced it. The next step was an application by the plaintiff, on the 18th of February 1922, to the Court of the Subordinate Judge, which was then presided over by B. Grish Chander, to amend his judgment, so that the decree should read that account should be taken up to the date of the decree obtained by the defendants in accordance with the Privy Council ruling to that effect. It would appear that on the 4th of March 1922 the defendants appeal from the original preliminary decree to the Court of the District Judge. On the same day B. Grish Chander allowed the application for review and passed a fresh decree. It is clear that though these two proceedings took place on the same date the appeal of the defendants was in fact filed before the order allowing the review was passed; for there is a reference to it in the order granting the review. On the 22nd April 1922 the defendants also appealed against the order allowing the amendment. The two appeals were heard together by the District Judge. He dismissed the plaintiff's suit for redemption, holding that the defendants' mortgages had ceased to exist as a consequence of the decrees obtained by them, and he held that the defendants were entitled to redeem the plaintiff. The plaintiff, at the hearing of the appeal, objected unsuccessfully that the appeal should have been against the preliminary decree as passed by the Subordinate Judge B. Grish Chander, an appeal against which was barred by time. The District Judge further held the order of B. Grish Chander, allowing the review, to be without jurisdiction, and the District Judge gave to the defendants a decree allowing them to redeem the plaintiff's mortgage on payment of Rs. 85.

4. The plaintiffs have now applied to this Court in Revision No. 65 of 1923 against the order of the District Judge by which he held that B. Grish Chander had no jurisdiction and in the Section A. No. 648 of 1923, against the order by which he reversed the decree of the Munsif and gave the defendants right to redeem.

5. It will be convenient to dispose of both matters in the same order.

6. As to the Revision No. 65 of 1923, it is again contended before us that the appeal of the defendants should have been directed, against the preliminary decree as amended by B. Grish Chander after he had ceased to be Munsif. To establish this contention it is necessary for the plaintiff to contend, and it has been contended with much verbal play on the wording of Rules 1 and 2 of Order 47, that the plaintiff was right in making to 13. Grish Chander his application for review and that B. Grish chander had power to entertain it. It is not necessary to follow counsel for the applicant in revision in the ramifications of his argument on this point. It is clear on the face of Rule 1 that an application for review must in all the cases, in which it is allowed at all, be made to 'the Court which paused the decree (or made to the order).' If this Rule 1 stood alone, then all such applications could be made to 'the Court which passed the' decree, whether the Judge presiding in that Court was the Judge who passed the decree or was a successor of that Judge. But Rule 1 is followed by Rule 2 which adds a further condition that, except in certain oases of which the case before us is not one, the application must be made 'only to the Judge who passed the decree.' In the cases excepted the application must be made to the Judge who is presiding at the time in 'the Court which paused the decree' and may be made to him whether he is the same Judge who passed the decree or the successor of such Judge, such cases being excepted from Rule 2 and only controlled by Rule 1. In other cases than those excepted (and the present case in not one of those excepted) Rule 2 declares that the application can only be made to the Judge who is not only, as required by Rule 1, sitting as the same Court, but is further the individual Judge who passed the decree.

7. In other words Rule 2 imposes in certain cases, of which this is one, a second condition in addition to that imposed by Rule 1. In the present case owing to transfer of B. Grish Chander, there was no Judge who fulfilled both conditions. B. Grish Chander was not sitting as the same 'Court,' and his successor Babu Raghunath Prasad was not the same 'Judge.' The plaintiff should, therefore, have proceeded to his remedy by way of appeal.

8. The fact that under certain circumstances there may be, through no fault or act of the intending applicant, no Judge at all to whom application for review can be made as in the present case, or where the individual Judge has died, would at first sight suggest a different interpretation of the section. This difficulty was incidently noticed in Maharaja Moheshur Singh v. Bengal Government (1850) 7 M.I.A. 283 at 304.

But in our opinion the terms Rules 1 and 2 and particularly the nature of the cases included and excepted by particular mention in those rules puts it beyond doubt that the Legislature carefully considered the cases for which it was providing, and that the consideration was not absent from its mind that in certain cases there might be no Judge at all to whom application could be made. Be that, however, as it may be, and though, the rules might have been more clearly worded, the effect of them is beyond doubt.

This is the only argument that was seriously pressed before us in this connexion and there is clearly no force in it.

We hold, therefore, that the learned Additional District Judge was clearly right in holding that B. Grish Chander had no jurisdiction to allow the review.

The application in revision is dismissed with costs including fees on the higher scale.

9. Next, as to the Section A. No. 648 of 1923 : it is urged that the prior mortgagee filed suits and got his decrees without making the plaintiff puisne mortgagee a party to his suit, and then himself purchased deliberately with the intention of depriving the puisne mortgagee of his right to redeem. This may be so; but how does it help the plaintiff. If, to mark our disapproval, the plaintiff were given the right to redeem which he claims, what would he gain thereby? The prior mortgagee has by his purchase of the mortgagor's rights secured the right to redeem the mortgage of the plaintiff, and if the plaintiff redeemed his mortgages, he would be able immediately in turn to redeem the plaintiff's mortgage. The case is in all essentials indistinguishable from that reported in Parasram Singh v. Pandohi A.I.R. 1922 All. 135. We find ourselves in complete agreement with that decision and the reasoning to be found therein. Some attempt was made by counsel for the appellant to distinguish that Casa on two grounds: firstly, that in that case the prior mortgagee who had become the owner of the equity of redemption had made a deposit under Section 83 of the Transfer of Property Act; and secondly that he had in his written statement put forward his claim to redeem. Neither argument has any force in face of the written statement in this case, in paragraph 10 of which the defendant declared himself ready to pay. and in paragraph 9 of which he asserted his right to redeem. The case was opened to us with the suggestion that it had been held that a prior mortgagee has a right to redeem. Of course, neither in the decision in Parasram Singh v. Pandohi A.I.R. 1922 All. 135 was this really held, nor do we hold it in this case; but merely that where the mortgagor's equity of redemption happens to have vested by purchase in a person who is also a prior mortgagee, and that person as owner of equity of redemption wants to redeem a puisne mortgage, while at the same time the puisne mortgagee wants to redeem the prior mortgage, the claim of the former not as prior mortgagee but as owner of the equity of redemption, will be preferred. There is no more force in the appeal than in the revision, and we dismiss it accordingly with costs including fees on the higher scale.


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