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Kaisari Mal Vs. Musammat Allahdi Begam - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in1Ind.Cas.227
AppellantKaisari Mal
RespondentMusammat Allahdi Begam
Excerpt:
transfer of property act (iv of 1882), section 67 - representative of mortgager entitled to remain in possession until sued. - - after the redemption of the prior mortgages, when the plaintiffs applied for an order absolute and an order was made directing the sale of the shares in faridpore as well as of rajpore, the decree-holder proceeded to take the necessary steps to have the village of faridpore sold. 483. of course the decree which the defendant obtained in 1892 is a perfectly good decree as against the party to that litigation but it is of no force against the plaintiffs in the present suit, who were no parties to the mortgage suit......court, in force at the period, it became necessary for the plaintiffs mortgagees to redeem the prior mortgages on rajpore, but the prior mortgages, which it was necessary to redeem, were also mortgages on faridpore, although the primary decree was only for the sale of rajpore. the result was that the plaintiff redeemed the prior mortgages. after the redemption of the prior mortgages, when the plaintiffs applied for an order absolute and an order was made directing the sale of the shares in faridpore as well as of rajpore, the decree-holder proceeded to take the necessary steps to have the village of faridpore sold. the plaintiffs then instituted the present suit alleging that they, in the events that have happened, have become transferees of the equity of redemption in faridpore,.....
Judgment:

1. This was a suit brought by the plaintiffs for a declaration that a 10 biswa share in Mouza Faridpore was not liable to be sold in execution of a certain decree. It appears that the village in question and another village called Rajpore were both subject to a series of mortgages. A puisne incumbrancer of Rajpore brought a suit to enforce the mortgage against that village. As a result of the rulings of this Court, in force at the period, it became necessary for the plaintiffs mortgagees to redeem the prior mortgages on Rajpore, but the prior mortgages, which it was necessary to redeem, were also mortgages on Faridpore, although the primary decree was only for the sale of Rajpore. The result was that the plaintiff redeemed the prior mortgages. After the redemption of the prior mortgages, when the plaintiffs applied for an order absolute and an order was made directing the sale of the shares in Faridpore as well as of Rajpore, the decree-holder proceeded to take the necessary steps to have the village of Faridpore sold. The plaintiffs then instituted the present suit alleging that they, in the events that have happened, have become transferees of the equity of redemption in Faridpore, that they had never been made parties to the suit, and that the village could not be sold in execution of the decree which the decree-holder had obtained. It has been found against the defendant that the plaintiffs, in the events which have happened, are the transferees of the equity of redemption and are in possession of the shares in Faridpore, and on these findings the Additional District Judge gave the plaintiffs a decree. Hence the present appeal. The first ground that was argued before us was that the plaintiffs' right, according to their own showing, was merely a right to redeem the property and that accordingly a suit for a declaration of title was not maintainable having regard to the provisions of the Specific Relief Act. We think that there is no force in this objection. The defendants denied that they were transferees. On the findings of the Court below the plaintiffs represent a mortgagor in possession under a simple mortgage. They are entitled as such to remain in possession until a regular suit has been brought against them under Section 67 of the Transfer of Property Act. We do not think that they are bound to redeem the property at the present moment. It will, of course, be open to the defendant to bring a suit for sale against them. The only other ground of appeal argued before us was that the decree of the lower appellate Court was too wide in so far that it directs and provides that the 10 biswa share in Mouza Faridpore is not liable to be sold in execution of the aforesaid decree. This decree is made in the same form as the decree in the case of Janki Prasad v. Kishen Dat 16 A. 478, at p. 483. Of course the decree which the defendant obtained in 1892 is a perfectly good decree as against the party to that litigation but it is of no force against the plaintiffs in the present suit, who were no parties to the mortgage suit. We think that the decree of the Court below is correct and we dismiss the appeal with costs which in this Court will include fees on the higher scale. One set of costs only will be allowed.


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