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Ram Sarup Vs. Sahu Bhagwati Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All636
AppellantRam Sarup
RespondentSahu Bhagwati Prasad and anr.
Excerpt:
- - the document in question was signed by the appellant and we are satisfied that he intended to appoint the vakil who made the application. this question has been very briefly dealt with by the court below in a dozen lines and the court considered that the claim of the respondents was well founded. from the weight of the english cases where the law is similar and of the ruling of 1918 of this court we consider that the proposition is well established that where there is an acknowledgment by a mortgagor that acknowledgment can only bind a mortgagee who derives his title subsequent to the acknowledgment, but it cannot bind a mortgagee who derives title prior to the acknowledgment......july 1917 in favour of gopi nath; (2) on 16th november 1922 in favour of raghubir saran, (on this mortgage a decree has been obtained by raghubir saran on 11th january 1926) and (3) on 28th july 1926 in favour of sahu bhagwati prasad and sahu jagdish prasad, the respondents. one point to be noted is that the mortgage in favour of the respondents was executed at a date subsequent to the decree on the second mortgage which is now the decree under execution. it is therefore claimed that the provisions of section 52, t.p. act, apply in favour of the decree-holder. the third mortgage contained a provision that rs. 2,100 were left for payment to gopi nath on the first mortgage, and on 29th july 1926 the same was actually paid to gopi nath amounting to rs. 2,151-14-0 in full discharge of his.....
Judgment:

Bennet, J.

1. This is an execution second appeal by a decree-holder Ram Sarup. The facts are somewhat complicated and are as follows: Jagannath and his son Ram Sarup made three simple mortgages as follows; (1) on 26th July 1917 in favour of Gopi Nath; (2) on 16th November 1922 in favour of Raghubir Saran, (on this mortgage a decree has been obtained by Raghubir Saran on 11th January 1926) and (3) on 28th July 1926 in favour of Sahu Bhagwati Prasad and Sahu Jagdish Prasad, the respondents. One point to be noted is that the mortgage in favour of the respondents was executed at a date subsequent to the decree on the second mortgage which is now the decree under execution. It is therefore claimed that the provisions of Section 52, T.P. Act, apply in favour of the decree-holder. The third mortgage contained a provision that Rs. 2,100 were left for payment to Gopi Nath on the first mortgage, and on 29th July 1926 the same was actually paid to Gopi Nath amounting to Rs. 2,151-14-0 in full discharge of his first mortgage by the mortgagee of the third mortgage. The present appellant made an application on 13th January 1931 for substitution of his name, and on 14th March 1931 substitution was made. He then made an application on 10th November 1932 for execution. One point which has been held against him by the lower Court is that in these applications there was no proper vakalatnama because the vakalatnama bore the name of a certain vakil and that vakil was not in fact the vakil who made the application; but another vakil made the application. The vakalatnama was signed by the appellant and also by the vakil who made the application.

2. It was apparently by an error that the name of another vakil remained in the document. Under Order 3, Rule 4(1) it is provided that no pleader shall act in any case unless he has been appointed for the purpose by such person by a document in writing and signed by such person.... The question is whether actually this vakil was appointed by the appellant. The document in question was signed by the appellant and we are satisfied that he intended to appoint the vakil who made the application. The mere mistake that the name of some other vakil remained in the body of the document does not make any difference. In actual fact the vakil in question has been acting throughout for the appellant and it is a mere quibble to hold, as the learned Subordinate Judge has held, that he was not entitled to make the application. There have been recent pronouncements of this Court to the effect that where the vakil is actually intended by a party to act on his behalf and does so act formal defects of this nature are of no importance. This was the main ground on which the lower Court has held against the appellant. We hold that the decision of the lower Court was wrong.

3. A further point which was raised by the respondents against the claim of the appellant for execution was that the respondents were entitled to priority on account of their payment of Rs. 2,151-14-0 to the first mortgagee. This question has been very briefly dealt with by the Court below in a dozen lines and the Court considered that the claim of the respondents was well founded. The matter is one of considerable difficulty and cannot be so briefly disposed of. On 2nd February 1931 the respondents brought a suit on the third mortgage. This mortgage had no doubt the item of consideration of Rs. 2,100 for the first mortgage but the suit was based on the third mortgage and not at all on the first mortgage. The second point which is to be noted is that the respondents did not implead Raghubir Singh, the mortgagee on the second mortgage in suit although he had actually obtained a decree on the second mortgage nor did they implead the appellant to whom the decree had been sold on 30th December 1930 and who had the substitution made for his name on 14th March 1931.

4. We consider that it was a great defect in the suit that Raghubir Saran or his transferee was not made a party. The decree was passed in favour of the respondents on 20th July 1931, the decree being against the mortgagor only. In execution of this decree the respondents had the property put up to sale and the respondents purchased the property themselves on 15th October 1932, and on 19th July 1933 the respondents obtained possession through the Court. The respondents therefore prayed that at the time of the execution application, which was made on 10th November 1932 they were the purchasers by auction sale although they had not obtained possession until a date subsequent to the judgment of the Munsif in this case which was on 8th May 1933. Now much argument has been made as to the fact of the payment by the respondents on 29th July 1926. On behalf of the appellant it is claimed that the whole transaction of mortgage No. 3 of 28th July 1926 cannot have any effect on his rights because under Section 52, T.P. Act, he can claim that, the transfer by the mortgagor made subsequent to the decree of 11th January 1926 in favour of Raghubir Saran is a transfer which cannot affect the lights of the decree-holder under that decree. On the other hand the respondents claim that they are persons who are subrogated under the provisions of Section 92 of the present T.P. Act, or under the provisions of Section 74, T.P. Act, as it stood at the time of their purchase on 29th July 1926. Learned Counsel for the respondents argued that on that date, 29th July 1926, they paid off the prior mortgage of 27th July 1917 and therefore acquired rights of subrogation under that mortgage. Now what were those rights Under Section 74 as it stood at that date it was provided that

The subsequent mortgagee shall, on obtaining such receipt, acquire in respect of the property all the rights and powers of the mortgagee as such to whom he has made such tender.

5. The provision in the present Section 92 for subrogation is practically the same. Learned Counsel argued that this right which he acquired in 1926 should extend for a period of 12 years from that date. We are of the opinion that this contention is not correct and that the language of Section 74 limits him to the rights and powers of the mortgagee of that date. Now the mortgage of 26th July 1917 provided that payment should be made within one year and the period of 12 years' limitation from that year would terminate on 2fith July 1930. The rights acquired therefore terminated on that date in 1930 and cannot be taken to extend the period of 12 years from 1926. No suit was brought by the respondents on the first mortgage and therefore in our opinion their rights under that mortgage have become time-barred.

6. An argument has been addressed to us at considerable length to the effect that time would be extended by an acknowledgment made by a mortgagor, the acknowledgment in question being the execution of the mortgage of 28th July 1926 in favour of the respondents as that deed contains an admission that Rs. 2,100 were due to Gopi Nath The question which arises for consideration is whether a mere acknowledgment by a mortgagor can operate under the provisions of Section 19 to extend limitation not only against himself but also against a puisne mortgagee who has acquired his puisne mortgage prior to the acknowledgment in question. In this connexion a distinction is to be drawn between rulings under Section 20 where there is a payment by the mortgagor and rulings under Section 19 where there is an acknowledgment by the mortgagor. The language of these two sections is different and the considerations to which they give rise are also different. In Section 20 it is provided that where there is a payment by the person liable to pay the debt that is sufficient to extend the period of limitation. The section presumes that a person will not make a payment unless he has a legal liability to make the payment. In Section 19 the provisions are that an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed or by some person through whom he derives title or liability. The acknowledgment has not been made by the appellant but it has been made by his mortgagor.

7. It cannot be said that the acknowledgment by the mortgagor is one by a person through whom the appellant derives title or liability. The title or liability of the appellant arises from the mortgage executed by the mortgagor in favour of Raghubir Saran on 16th November 1922. It was on that date and by virtue of that mortgage that the title or liability of the appellant arose. He has had no further connexion since that date with the mortgagor and it cannot be said that he derived title from the mortgagor by any transaction subsequent to 1926. We consider that the plain language of Section 19 means that the person through whom he derives title or liability must be a person through whom he has derived title or liability at the time of the acknowledgment. Now it was four years prior to the acknowledgment that he derived his title or liability. The mortgagor in 1926 was not the person through whom the appellant had derived title and liability. He was a person through whom the appellant had derived title and liability four years previously. We are of the opinion that this distinction is essential to Section 19 and that the acknowledgment by the mortgagor in 1926 cannot in any way extend limitation against the appellant who derived his title from that mortgagor in 1922. We now come to the case law on the subject.

8. In the years 1918 and 1919 there were two rulings of this Court on the subject, but as these rulings were of a period within about nine months it is apparent that the learned Judges who made the later ruling did not have the benefit of seeing the earlier ruling. The earlier of these rulings was of August 1918 and is reported in Baushan Lal v. Kanhaya Lal 1918 47 IC 845:41 All 111 by a Bench of Piggot, J., and Walsh, J. In that case it was held that a payment by a mortgagor did save limitation in case of a claim against a subsequent mortgagee, but a distinction was drawn by the Bench on the difference between the acknowledgment under Section 19 and a payment under Section 20 and the Bench took the same view which we have enunciated. We then come to the later case of 6th May 1919 reported in Arbindakeb Rai v. Jageshar Rai 1919 51 IO 829:17 ALJ 763. One member of the Bench was the same Walsh, J. and the other member was Stuart, J. The finding of the Bench was extremely brief. It was a case where there was an acknowledgment and the Bench held that the acknowledgment was sufficient against the mortgagee although the mortgagee in question had obtained his mortgage prior to the acknowledgment. There was no discussion of the case law on the subject. There was some reference to a Calcutta case not by name which was under Section 20, Lim. Act, and that section as we have shown is essentially different in regard to this point from Section 19. We now turn to some English rulings which have been cited by the Courts in India and which have been relied on by the decision of this Court in 1918. One of the earliest of these rulings is in Bolding v. Lane (1863) 1 De G J & S 122, by Lord Chancellor Westbury and that case was directly in point and he held that an acknowledgment by a mortgagor does not preclude a puisne mortgagee from relying on limitation where the mortgage had been taken previous to the acknowledgment. This ruling has been quoted with approval in subsequent rulings, one of which is Lewin v. Wilson (1886) 11 AC 639 where there is a discussion on this point. These are rulings of 1863.

9. On p. 645 a distinction was drawn between the case by their Lordships of the Privy Council and the case in Chinnery v. Evans (1865) 11 HLC 115. That was a case of payment and it was pointed out that a payment raised different considerations from an acknowledgment. From the weight of the English cases where the law is similar and of the ruling of 1918 of this Court we consider that the proposition is well established that where there is an acknowledgment by a mortgagor that acknowledgment can only bind a mortgagee who derives his title subsequent to the acknowledgment, but it cannot bind a mortgagee who derives title prior to the acknowledgment. We therefore think that the claim of the respondents that the period of limitation on their rights under the first mortgage would be extended by the acknowledgment contained in the third mortgage is a claim which is not established. Therefore in our view the respondents have got no rights left under the first mortgage and they are persons who are deprived of any claim they might have had against the appellant because the provisions of Section 52, T.P. Act, are against them. We therefore consider that the objection which the respondents have made in regard to their payment of Rs. 2,151-14-0 on 29th July 1926 cannot be sustained. Therefore we allow the appeal, set aside the order of the lower appellate Court and restore the order of the Munsif, and we dismiss the objection of the respondents with costs throughout.


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