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Mohammad Abbas Ali Khan and ors. Vs. Chotey Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All28; 97Ind.Cas.594
AppellantMohammad Abbas Ali Khan and ors.
RespondentChotey Lal
Excerpt:
- - 2 to 7 had been satisfied. ram kumar satisfied that mortgage and consequently brought a suit for recovery of the sums of money covered by the two mortgages. 5 of 1907 and to this abbas ali was a party, chotey lal satisfied the decree, that was passed in favour of ram kumar, on the execution in his favour of the mortgage in suit. where a mortgage-debt for the payment of which a sale has been ordered, is satisfied by a third party, who obtains a security for the advance made by him, such security is not extinguished by section 89 of the transfer of property act, and the encumbrance in respect of which the sale was ordered enures for the benefit of the party making the payment. 107 had been known to the parties the plaintiff could very well have offered nothing to the first mortgagee.....mukerji, j.1. this letters patent appeal arises owing to a difference of opinion between two learned judges of this court, with the result that the judgment of the learned judge was upheld. the question before us has narrowed itself down very much. the two learned judges heard three appeals in the first instance against the same judgment of the court below. all the three appeals were dismissed, but there was a difference of opinion as regards appeal no. 7 of 1.922, which is now before us again in the shape of the letters patent appeal.2. the facts, so far as they are involved in the appeal of abbas ali (since deceased and now represented by his widow and some), are these: the respondent r. b. chotey lal brought suit no. 219 of 1920 for recovery of a very large sum of money amounting to.....
Judgment:

Mukerji, J.

1. This letters Patent appeal arises owing to a difference of opinion between two learned Judges of this Court, with the result that the judgment of the learned Judge was upheld. The question before us has narrowed itself down very much. The two learned Judges heard three appeals in the first instance against the same judgment of the Court below. All the three appeals were dismissed, but there was a difference of opinion as regards Appeal No. 7 of 1.922, which is now before us again in the shape of the Letters Patent appeal.

2. The facts, so far as they are involved in the appeal of Abbas Ali (since deceased and now represented by his widow and some), are these: The respondent R. B. Chotey Lal brought Suit No. 219 of 1920 for recovery of a very large sum of money amounting to over a lac of rupees from certain properties and a large number of defendants, numbering 24. The suit was based on the mortgage-deed for Rupees 40,000, dated the 2nd of September 1908. The plaintiff contended that he had paid the sum of Rs. 35,000 and odd towards the satisfaction of two prior mortgages: one held by one Sabu Ram Kumar and the other held by Hargulal, but paid off by Ram Kumar and bearing dates, 27th April 1900, and 7th January 1901, and had thereby obtained priority for that sum against three villages Choharpur Bagad, Shahjehanpur and Athain. His case, therefore, was that, so far as this sum of money and the interest thereupon was concerned, this money should come, in the first instance, out of these three villages. He admitted that the Defendants Nos. 2 to 7, among whom was Abbas Ali, were prior mortgagees with respect to the remaining portion of his claim; in other words, he said that in respect of the remaining portion of his claim, the property mortgaged to him should be sold subject to the prior charge of the Defendants Nos. 2 to 7.

3. The plaintiff was not concerned with the villages Choharpur Bagad and Shahjehanpar beyond the satisfaction of the sum of Rs. 35,000 and odd and interest. He had, however, a claim for the satisfaction of his remaining portion of the money from the village Athain after the claim of the Defendants Nos. 2 to 7 had been satisfied. It appears further that a sum of Rs. 1,232 is in deposit in Court, being the balance of the sale proceeds of a 10 biswas share in village Muhammadpur Patti Jagir. The plaintiff claims that he is entitled to, recover this sum of money in part satisfaction of his claim. Several defendants raised several points but Abbas Ali contended that as regards' Athain he had a prior charge and that as regards this sum of Rs. 1,232 he was the person who had a prior charge.

4. We have to consider whether the two claims of the plaintiff are to be upheld as they have been upheld by the original Court. As regards Athain, the plaintiff's claim stands thus. As already stated, Ram Kumar held two mortgages, one of 1900 and the other of 1901, against properties Athain, Choharpur Bagad and Shahjehanpur. There were other properties involved in the mortgages but Ram Kumar never sought to bring them to sale apparently because they had been sold under a prior mortgage. The earlier mortgage was held by Hargu Lal. Ram Kumar satisfied that mortgage and consequently brought a suit for recovery of the sums of money covered by the two mortgages. This suit was No. 5 of 1907 and to this Abbas Ali was a party, Chotey Lal satisfied the decree, that was passed in favour of Ram Kumar, on the execution in his favour of the mortgage in suit. The mortgage in suit was executed to satisfy the mortgage decree of Ram Kumar and the balance was paid to the mortgagor. Chotey Lal says that the sum of Rs. 35,000 and odd that went to satisfy Ram Kumar's decree ought to come in the first instance from the villages of Athain, Choharpur and Shahjehanpur. Abbas Ali's defence with respect to this portion of the claim is this: The decree that was passed in favour of Ram Kumar was passed under Section 89 of the Transfer of Property Act of 1882, and that, therefore, on account of the rule contained in Section 89, Ram Kumar's security was extinguished, on the passing of the order absolute for sale. Abbas Ali says that the security having been extinguished, Babu Chotey Lal is not entitled to take advantage of it.

5. Let us see how far this contention is correct. The contention is based on the language of Section 89 of the Transfer of Property Act and on two Privy Council cases which, it is said, upheld this reading of Section 89.

6. Section 89 of the Transfer of Property Act came in for interpretation in this Court in the case of Shyam Lal v. Bashir-ud-din [1906] 28 All. 778. This Court interpreted Section 89 as meaning that it was on the sale of the property that the security was to be extinguished and not earlier. The learned Judges of this Court who decided the case felt considerable difficulty in understanding what was really meant by the Legislature in saying 'and thereupon the defendant's right to redeem and the security both shall be extinguished.' They, however, followed a Full Bench case decided by five learned Judges of the Calcutta High Court and reported as Bibijan Bibi v. Sachi Bewah [1904] 31 Cal. 863. The headnote of the decision of this Court runs as follows:

Where a mortgage-debt for the payment of which a sale has been ordered, is satisfied by a third party, who obtains a security for the advance made by him, such security is not extinguished by Section 89 of the Transfer of Property Act, and the encumbrance in respect of which the sale was ordered enures for the benefit of the party making the payment.

7. Undoubtedly, therefore, under the authority of this Court and under the authority of the Calcutta. High Court, Chotey Lal, owing to the satisfaction of Ram Kumar's decree, would step into the shoes of Ram Kumar and of the still prior mortgagee, Hargu Lal. It is, however, said that the case of Het Ram v. Shadi Lal [1918] 40 All. 107 put a different interpretation on Section 89 of the Transfer of Property Act, and the rulings of this Court and that of the Calcutta High Court must be held as having been overruled. In the case of Het Ram, there can be no doubt, that their Lordships of the Privy Council put the construction that on the passing of the order absolute for sale the security of the decree-holder would be extinguished. But this observation was only an obiter dictum and it cannot be said that the question arose for determination specifically and was considered by their Lordships of the Privy Council as a contested point. In the case before their Lordships the appellant was the successor-in-title of the mortgagor and also of the prior mortgagee. On the second mortgagee, who was not a party to the first mortgagee's suit, instituting a suit of his own, it was resisted by the appellant with the plea that he was the holder of a prior mortgage. Their Lordships pointed put that the earlier mortgage had been sued upon and the decree had been allowed to become barred by limitation. The decree, therefore, never reached its logical consequence and be came ineffective. The decree having become ineffective the mortgage died as it were. This fact was enough for the decision of the case and their Lordships' pronouncement on the interpretation of Section 89 was an obiter dictum, though, of course, it was an obiter dictum of the highest Court in the land and is, therefore, entitled to its proper respect.

8. This case was followed by the case of Maine Mal v. Durga Kunwar [1920] 42 All. 364. This was also a decision by their Lordships of the Privy Council and their Lordships intimated what interpretation the Board had put in the earlier case of Het Ram v. Shadi Lal [1918] 40 All. 107 on Section 89 of the Transfer of Property Act. In this case of Maternal [1920] 42 All. 364 also the question of interpretation of Section 89 never specifically arose. Here the first mortgagee had brought a suit for sale under the Transfer of Property Act without making the second Mortgagee a party to the suit. The first mortgagee obtained a decree for sale and purchased the property in execution of the decree. The second mortgagee brought his suit in due course and offered to redeem the first mortgagee. The question arose whether the first mortgagee should be paid on foot of his mortgage or on foot of his decree. It appears that if the first mortgagee was allowed to claim on foot of his mortgage, he would be entitled to a larger sum than what he could get under his decree. The High Court (Allahabad High Court) decided that the decree was the document to be looked at and their Lordships of the Privy Council upheld this view. Incidentally they remarked that if the case of Het Ram v. Shadi Lal [1918] 40 All. 107 had been known to the parties the plaintiff could very well have offered nothing to the first mortgagee auction-purchaser. That was, however, a remark only by the way and there was no question of interpreting Section 89 for a second time.

9. These two cases were followed in this Court by several cases and first in order comes the Full Bench case of Chhagan Lal v. Muhammad Hussain Khan [1919] 41 All. 456. Here again the question of interpretation of Section 89 came as a secondary point and the pronouncements of opinion can be treated only as obiter dicta. In this case, a second mortgagee, who has satisfied the first mortgagee, obtained a decree for sale and the decree was made absolute in due course. There was a third mortgage and this mortgagee was not made a party to the suit of the second mortgagee. The second mortgagee took a fourth mortgage in consideration of the decretal amount due to him and it was expressly stated in the mortgage that the decree would be deemed to have been discharged by the said mortgage. When the third mortgagee brought his suit, the question arose whether this fourth mortgage had any priority over the third mortgage, to the extent of the amounts of the first and the second mortgages. The three learned Judges who decided the case were agreed that, on the terms of the fourth mortgage, there is no room for the contention that the first two mortgages had been kept alive. That being so, the whole case ended there, and it was not necessary to say that on account of the passing of the order absolute for sale the security of the first two mortgages became extinct.

10. When it was decided by the concurrent judgment of the three learned Judges that the fourth mortgagee had abandoned his security and did not choose to keep it alive, no further question arose as to whether the passing of the order absolute had or had not the effect of extinction of the security. The opinion of two of the learned Judges, therefore, on the point, is nothing better than obiter dictum. This Full Bench case of Chhagan Lal v. Muhammad Hussain Khan [1919] 41 All. 456 was followed by a Bench of two Judges in Jagannath Prasad v. Chhatur Kunwar A.I.R. 1923 All. 171. The learned Judges who decided the case accepted the correctness of the obiter dicta of two of the learned Judges in the Full Bench case.

11. A question involving similar facts again arose, but, this time, after the passing of Civil P. C. of 1908. The case went up to their Lordships of the Privy Council and is reported as Sukhi v. Ghulam. Safdar Khan A.I.R. 1922 P. C. 11. At their Lordships' bar the case 'of Het Ram v. Shadi Lal [1918] 40 All. 107 was relied upon. Their Lordships pointed out that judgment had been given under Act IV of 1882, Section 89, which had since been repealed. Their Lordships also referred to the case of Matru Mal v. Durga Kunwar [1920] 42 All. 364, referred to above. The case of Sukhi was decided on the Civil P. C. of 1908, but their Lordships made a certain remark which is very very significant and on which I put the greatest stress possible.

12. Their Lordships said referring to the words quoted of Section 89 of the Transfer of Property Act: (see page 475 of 43 All.):

The difficulty which has arisen as to these words in several oases, e.g., Vanmikalinga Mudali v. Chidambara Chetty-[1906) 29 Mad. 37 which case, it may be mentioned, doss not seem to have been brought to the notice of the Board in Het Ram's case [1918] 40 All. 107,-therefore, no longer arises. The decree in this case, was in 1910, and was, therefore, under the Code of Civil Procedure Rules and not under the section of the Transfer of Property Act, 1882.

Now, the words being gone, their Lordships feel no difficulty in holding that the law remains as it certainly was before the Transfer of Property Act, 1882, viz., that an owner of a property, who is in the rights of a first mortgagee and of the original mortgagor as acquired at a sale under the first mortgage is entitled at the suit of a subsequent mortgagee who is not bound by the sale or the decree on which it proceeded to set up the first mortgage as a shield.

13. As I read this second paragraph of their Lordships' remark, I take it, that if the case of Vanmikalinga Mudali v. Chidambara Chetty [1906] 29 Mad. 37 had been pointed out to their Lordships, the decision in Het Ram's case [1918] 40 All. 107 would have been different. Their Lordships undoubtedly laid stress on the fact that the law under the Civil P. C. of 1908 was the same as it stood before the passing of the Transfer of Property Act. Their Lordships do not say that the Transfer of Property Act really made any substantial difference in the pre-existing law. Their Lordships do throw out the clear hint that if the case of Vanmikalinga Mudali v. Chidambara Chetty [1906] 29 Mad. 37, [and we may for the matter of that, add the cases of Shyamlal v. Bashir-ud-din [1906] 28 All. 778 and Bibi Jan Bibi v. Sachi Bewah [1904] 31 Cal. 863 had been brought to their Lordships' notice, the opinion as to the interpretation of Section 89 in the case of Het Ram [1918] 40 All. 107 would have been different. In the circumstances, I would read their Lordships' decision in Sukhi's case A.I.R. 1922 P. C. 11 as by a clear implication, overruling Het Ram's case [1918] 40 All. 107 and thereby releasing the Courts in India from following what was, after all, an obiter dictum of their Lordships in Het Ram's case [1918] 40 All. 107, on the interpretation of words which nobody understood as making a sense.

14. In this view, it is perfectly simple, that the respondent is entitled to a first charge on the village of Athain as to which Abbas Ali raises the contention. The case of B. Chotey Lal is also sought to be rested on a plea of res judicata and that point has been dealt with by my learned brother in his learned judgment. I need not go over the same grounds. It is sufficient to say that I agree with all that has been said by him on that point. The next question is as to who is entitled to the sum of Rs. 1,232 which is in deposit in Court. There can be no doubt that Abbas Ali has a prior right to the sale proceeds which really represent the property of 10 biswas of Muhammadpur Patti Jagir, over which he has a prior charge. The plaintiff's claim with respect to this sum of money must fail.

Sulaiman, J.

15. This is a Letters Patent appeal by Abbas Ali Khan (since deceased) arising out of a suit for sale on the basis of a mortgage-deed dated the 2nd of September 1908. The learned Judges before whom this appeal came up first for hearing differed in their opinions. There is, however, no dispute as regards the facts of this case which are admitted and are fully set forth in the judgments of both the learned Judges who disposed of the first appeal. I, therefore, do not propose to recite them again seriatim. The disputes between the parties may be narrowed down to very few points only and it is best to consider these points by themselves. The first matter in controversy turns on the discharge by the plaintiff of two mortgages dated the 27th of April 1900, and the 7th of January 1901, in favour of Hargu Lal and Ram Kumar respectively. A suit was brought by Ram Kumar who got a preliminary decree for the amounts due on both these mortgages in the year 1907. This decree was made absolute on the 4th of January 1908 under Section 89 of the Transfer of Property Act. The decree directed that Ram Kumar should redeem Hargu Lal and then be entitled to realize the amounts due under both these mortgages. It is an admitted fact that Chotey Lal, the present plaintiff, being a subsequent transferee, paid off the whole of this decretal amount due on both the said mortgages on the 9th of January 1909. Chotey Lal accordingly claims priority in respect of this amount which was Rs. 35,702-4-5 on the date when he took his mortgage in suit, by which deed this amount was left in his hands for payment. On the other hand, Abbas Ali Khan who is a subsequent purchaser of part of the property mortgaged has discharged subsequent mortgages of Chotey Lal and Gauri Shankar of the years 1906 and 1907 and does dot admit the prior claim of the plaintiff on the basis of Ram Kumar's decree. The contention on behalf of Abbas Ali Khan is that the decree in favour of Ram Kumar was under the old Section 89 of the Transfer of Property Act, and that as soon as the order absolute was passed under the provisions of that section the security became extinguished. The contention accordingly is that the discharge of the mortgages of Hargu Lal and Ram Kumar by Chotey Lal did not give him any priority because the security under those mortgages was extinguished by the passing of the order absolute on the 4th of January 1908. On the other hand, Ram Kumar's contention is that his priority was not extinguished.

16. Prior to the passing of the Transfer of Property Act it was well settled that a subsequent mortgagee who pays off a prior mortgage is entitled to priority on account of the payment. Considerable difficulty, however, was caused by the language of Section 89 of the Transfer of Property Act which admittedly was not happy. There was great speculation as to the correct meaning of the last portion of the section and very often it was remarked that it was not easy to discover what the Legislature had really intended. The Full Bench of the Calcutta High Court in the case of Bibijan Bibi v. Sachi Bewah [1904] 31 Cal. 863 had taken the view that the expression 'thereon the security shall be extinguished' meant that this contingency would take place after the property had been sold and the sale-proceeds had been distributed. This view was followed by the Madras High Court in the case of Vanmikalinga Mudali v. Chidambara Chetty [1906) 29 Mad. 37 and this High Court in the case of Shyam Lal v. Bashir-ud-din [1906] 28 All. 778. The result of these rulings was that the mere fact that an order absolute had been passed did not bring about a complete extinguishment of the security, but that the priority continued. The language of the section, however, was difficult of interpretation. In the case of Het Ram v. Shadi Lal [1918] 40 All. 107 their Lordships of the Privy Council had before them the question of its interpretation. In the clearest language possible their Lordships pronounced that the meaning of the section was that the security became extinguished on the passing of the order absolute. This obviously negatived the previous interpretation that it became extinguished only after the sale and the distribution of the sale-proceeds. A possible view to take might have been that the security became extinguished only as between the parties to the suit. But in the case before their Lordships the second subsequent mortgagee was in fact not a party; nevertheless it was held that the security was extinguished.

17. This case was, of course, followed by the Pull Bench of this Court in the case of Chhagan Lal v. Muhammad Husain Khan [1919] 41 All. 456, where, too, it was held that on the passing of the decree absolute the security had been extinguished. It is true that all the three learned Judges in that case held that on the interpretation of the deed of transfer there could be no doubt that the intention of the parties was to bring about a complete discharge of the mortgage. But there can be also no doubt that two learned Judges, Rafique and Lindsay, JJ., held that the effect of the provision of Section 89 was to extinguish the mortgage. This case has in its turn been followed in the case of Jagannath Prasad v. Chhatur Kunwar A.I.R. 1923 All. 171. The question came up again before their Lordships of the Privy Council in Matru Mal v. Durga Kunwar [1920] 42 All. 364, in which their Lordships again used the expression 'the security had been extinguished on the passing of the decree.' The case of Sukhi v. Ghulam Safdar Khan A.I.R. 1922 P. C. 11 turned on the interpretation of Order 34, Civil P. C. from which the words and the security shall be extinguished' have been omitted. This case, therefore cannot be held to overrule the previous pronouncement. I, therefore, feel bound to hold that in view of the interpretation put on the section by their Lordships of the Privy Council it must be taken that the effect of the provisions of the old Section 89 was to extinguish the security as soon as the order absolute was passed. It does not, however, follow from this that the priority also was necessarily extinguished The passing of the order absolute put an end to the mortgage security, but that security was incorporated into and merged in the decree. The priority of the mortgagee became the priority of a decree-holder. This question of extinguishment of priority did not at all arise in the case of Het Ram v. Shadi Lal [1918] 40 All. 107. In that case the prior mortgagee had obtained a decree without impleading the second mortgagee but had failed to put it into execution and it became barred by time and unenforcible. Not only that but more than 12 years were allowed to expire from the date of the first mortgage by the time the second mortgagee brought his suit. Their Lordships accordingly held that in a suit brought by the subsequent mortgagee in which the prior mortgagee was impleaded, the latter had no right to claim priority either on the basis of his prior mortgage which had been extinguished and merged in decree or on the basis of the decree, which had become barred by time. The question of priority under the decree, therefore, diet not at all arise. In the case of Matru Mal v. Durga Kunwar [1920] 42 All. 364 although their Lordships held that the effect of Section 89 was to extinguish the security, nevertheless, their Lordships allowed the defendants to claim the amount due-under the mortgage-decree as against the plaintiff. I am, therefore, of opinion that there is no good ground for holding that the extinguishment of the security put an end to the priority which Ram Kumar decree-holder could claim by virtue of his decree.

18. Once it is conceded that Ram Kumar's prior claim under the decree remained, it is obvious that Abbas Ali Khan cannot be allowed to set up any mortgage claiming a prior right which he could not have been allowed to set up in the suit brought by Ram Kumar. Ram Kumar's decree must have precedents over all mortgages subsequent to those of Hargu Lal and Ram Kumar even though they be prior to the decree of Kumar. The position is further strengthened by the fact that both Abbas All Khan and Chotey Lal, the present claimant, were parties to Ram Kumar's suit. Both of them were bound by Ram Kumar's decree. If, therefore, Chotey Lal has paid off the whole of Ram Kumar's decree he is certainly entitled to set up the prior claim of. Ram Kumar against his co-defendant Abbas Ali Khan.

19. The claim of Chotey Lal is further strengthened by a circumstance operating as res judicata. In a subsequent suit brought by Chedan Lal on the basis of his mortgage-deed dated the 22nd of October 1906, against both Abbas Ali Khan and Chotey Lal, the latter took the plea that he had a prior claim by virtue of having paid off the mortgage-decree of Ram Kumar. In a judgment delivered on the 21st of February 1913, the learned Subordinate Judge held that Chotey Lal had priority over Chedan Lal as regards village Athain. Subsequently Chedan Lal proceeded to sell one of the mortgaged properties, viz., Munda Khera which had been purchased by Abbas Ali Khan. Abbas Ali Khan's village was sold and satisfied Chedan Lal's decree Abbas Ali Khan claims to have stepped into the shoes of Chedan Lal and claims priority on account of Chedan Lal's mortgage as against the plaintiff's mortgage of 1908. This claim is put forward by Abbas Ali Khan as representative of Chedan Lal. But the learned Subordinate Judge had held against Chedan Lal himself that Chotey Lal had a prior claim against him. The contention of Abbas Ali Khan is accordingly barred by the principle of res judicata.

20. The result of this view is that so far as the village Athain is concerned, which was included in the mortgages of Hargu Lal and Ram Kumar, the plaintiff Chotey Lal having paid off Ram Kumar's decree is entitled to priority as against Abbas Ali Khan who is a representative of the subsequent mortgagee. The result,therefore is that the plaintiff will be entitled to a first charge against Athain and other villages included in the mortgages of Hargu Lal and Ram Kumar for the sum of Rs. 35,702-4-5 together with interest. It is not open to Abbas Ali Khan to resist Chotey Lal's claim to sell any of these properties for this amount. After a sale has taken place if any property of Abbas Ali Khan or any property over which he has a claim has contributed more than its due share that is a matter for contribution which may arise in a subsequent suit. This disposes of the first point raised by Abbas Ali Khan.

21. The second contention of Abbas Ali Khan is that the village Muhammadpur muafi had not been included in the mortgages of Hargu Lal and Ram Kumar. On the other hand, it had been included in the mortgages of Chedan Lal and Gauri Shankar. It had also been included in an earlier mortgage of the 15th of September 1897, in favour of Gauri Sahai. Gauri Sahai brought a suit and obtained a decree but the amount of the decree was paid by one of the judgment-debtors Durga. Durga then brought a suit for contribution and got village Mohammadpur muafi sold at auction. The sale-proceeds were more than sufficient to satisfy his claim and a surplus amount of Rs. 1,232 was left over, and is still in deposit. Abbas Ali Khan claims that the present plaintiff Chotey Lal can have no prior claim over this amount, that on the other hand, Abbas Ali Khan himself by virtue of haying satisfied part of Chedan Lal's decree and the decree of Gauri Shankar is entitled to a prior claim. On the other hand the learned Advocate for Chotey Lal contends that Abbas Ali Khan cannot be allowed to claim priority in respect of the whole amount which he paid, that is the whole amount which he paid towards the discharge of previous mortgages, but that he must claim contribution only in respect of the excess amount which his village has been made to pay and further that excess amount should be rateably distributed over all the villages. I am unable to accept this contention advanced on behalf of Chotey Lal. It has already been held that by virtue of the payment of Ram Kumar's decree, Chotey Lal is entitled to the whole of the amount as a prior claim. On the same principle I must hold that Abbas Ali Khan having paid off the subsequent mortgage of Chedan Lal and Gauri Shankar has priority in respect of the whole amount paid by him as against Chotey Lal who comes under a subsequent mortgage., If any surplus were to be left over after the satisfaction of Abbas Ali Khan's claim then the plaintiff, Chotey Lal, may have a claim on it. In this view of the matter the plaintiff has no prior claim on the sum of Rs. 1,232 over which Abbas Ali Khan undoubtedly has a claim. The plaintiff's claim for a declaration that he is entitled to withdraw this amount cannot, therefore, be allowed. On the other hand Abbas Ali Khan having a prior claim is entitled to take out this money in part satisfaction of the amount paid by him on the prior mortgages. The same remarks apply to the 10 biswas of Mohammadpur muafi which had not yet been sold. The plaintiff as a matter of fast claimed no priority as regards this village.

22. The last contention of Abbas Ali Khan arises on account of the sale of the village Munda Khera. His contention is that Munda Khera having been sold and been made to pay more than its proportionate share there ought to be a corresponding charge on the other villages sought to be sold by the plaintiff. It has, however, been already stated that the plaintiff has a prior claim on account of the decree of Ram Kumar. Abbas Ali Khan's rights arose after the mortgage, on the basis of which Ram Kumar's decree was obtained. He, therefore, cannot resist the plaintiff's claim. The question of an adjustment of equities as between co-mortgagors can arise only in a subsequent suit for contribution.

23. In the course of the argument the learned Advocate for Abbas Ali Khan wanted to place reliance on a decree dated the 28th of August, 1911, passed in the suit brought by Chotey Lal himself on the basis of an earlier mortgage of his dated the 10th of March 1908. He wanted to contend that the effect of that decree was to disallow Chotey Lal's claim for priority and the same operates as res judicata. The judgment in that case is not on the record. The plea of res judicata on behalf of Abbas Ali Khan was not taken either in the Court of first instance or before the learned Judges of this Court who first heard the appeal nor is that plea to be found in the grounds of appeal before those learned Judges, nor, in the grounds of appeal before us.

24. According to the well-established practice of this Court no point can be raised in Letters Patent Appeal which was not raised before the learned Judges who first disposed of the appeal. Furthermore, in the absence of the judgment in that case it is difficult to hold what was actually decided by the Court. The decree as it stands is not free from ambiguity, We have, therefore, disallowed this point to be raised. Similarly the contention on behalf of Chotey Lal that this decree operates as res judicata has also not been accepted.

25. I would, therefore, allow this appeal of Abbas Ali Khan in part to this extent that I would dismiss the claim of Chotey Lal as regards the claim of Rs. 1,232 representing the surplus of sale proceeds of 10 biswas of Mohammadpur Muafi.


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