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Narotam Das Vs. Sanwal Dass and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1934All946; 153Ind.Cas.664
AppellantNarotam Das
RespondentSanwal Dass and ors.
Excerpt:
- - the right of the subsequent mortgagee to redeem the mortgaged property, where it has been sold at the instance of the prior mortgagee in a suit to which the puisne mortgagee is no party, is well established in this court. a fortiori the assignee of the mortgagee rights must be considered by the mortgagee for the purposes of article 148. in this view the period of limitation is clearly 60 years reckoned from the date of the prior mortgage. be that as it may, i am bound to follow the rulings of this court which makes it perfectly clear that the......of his mortgage, obtained a decree for sale and purchased the mortgaged property himself. the prior mortgagee had not impleaded the plaintiff as a party to his suit nor did the plaintiff implead the prior mortgagee in his suit. it was not necessary for the puisne mortgagee to make the prior mortgagee a party though it was necessary for the latter to implead him in his suit. the puisne mortgagee then instituted the suit which has given rise to this appeal for redemption of the prior mortgage and for recovery of possession of the mortgaged property. both the courts below decreed the plaintiff's suit for redemption.2. it is argued on behalf of the appellant, the auction-purchaser, in the prior mortgagee's suit that the plaintiff-respondent's suit for redemption is barred by 12 years'.....
Judgment:

Niamatullah, J.

1. This is an appeal from the decree passed by the Second Additional Subordinate Judge of Jaunpur upholding the decree passed by the Munsif of Shahganj in a suit brought by the plaintiff-respondent for redemption of certain property. It is no longer in dispute that the original proprietor was one Mohammad Malik who executed a deed of usufructuary mortgage on 19th September 1898 in favour of Deonandan Dube. The latter was in possession of the mortgaged property. The heirs of Mohammad Malik subsequently executed a deed of simple mortgage on 19th September 1900 in favour of the plaintiff-respondent. Deonandan was dispossessed some time before 1911 and sued the heirs of the mortgagor for recovery of his mortgage money by sale of the mortgaged property. A decree for sale was passed and the mortgaged property was sold in execution of that decree. The appellant was declared to be the purchaser and obtained delivery of possession on 16th August 1922. In the meantime the plaintiff, the subsequent mortgagee, instituted a suit for the forcement of his mortgage, obtained a decree for sale and purchased the mortgaged property himself. The prior mortgagee had not impleaded the plaintiff as a party to his suit nor did the plaintiff implead the prior mortgagee in his suit. It was not necessary for the puisne mortgagee to make the prior mortgagee a party though it was necessary for the latter to implead him in his suit. The puisne mortgagee then instituted the suit which has given rise to this appeal for redemption of the prior mortgage and for recovery of possession of the mortgaged property. Both the Courts below decreed the plaintiff's suit for redemption.

2. It is argued on behalf of the appellant, the auction-purchaser, in the prior mortgagee's suit that the plaintiff-respondent's suit for redemption is barred by 12 years' rule of law. It is said that the appropriate article applicable in such a case is Art, 132, Schedule 1, Lim. Act, and that the period of 12 years is to be reckoned from the date of the subsequent mortgage. The logical result of this contention is somewhat startling. If the prior mortgagee had not instituted his 'suit without impleading the puisne mortgagee and if the latter had instituted a suit for redemption while the prior mortgagee was in possession, he had 60 years time reckoned from the date of the prior mortgage. If the appellant's contention is correct, the prior mortgagee could materially vary the right of the subsequent mortgagee so far as limitation is concerned by instituting a suit and obtaining a decree behind his back so that the subsequent mortgagee, if he is driven to a suit for redemption not against the prior mortgagee but the auction-purchaser, has only 12 years reckoned from the date of his own mortgage. The right of the subsequent mortgagee to redeem the mortgaged property, where it has been sold at the instance of the prior mortgagee in a suit to which the puisne mortgagee is no party, is well established in this Court. It has been repeatedly held that the right of the puisne mortgagee to redeem is not affected by anything done in the prior mortgagee's suit to which the puisne mortgagee was no party. In Nannu Mal v. Ram Chander 1931 All 277 it was held that the auction-purchaser in a prior mortgagee's suit to which the subsequent mortgagee is no party acquires the right of the mortgagor. It has been recognised in numerous other cases tbat the puisne mortgagee's right to redeem the prior mortgage is not affected by the sale and that he can redeem the prior mortgage, treating the auction-purchaser as the prior mortgagee. Another Pull Bench case of Ram Sanehi Lal v. Janki Prasad 1931 All 466 discusses practically the whole case law of this Court on the point. Applying the rule deducted! from this and similar other decisions of this Court, it seems to me that the auction purchaser is to be deemed as the assignee of the mortgagor's right and of the prior mortgagee's right. The subsequent mortgagee can redeem the prior mortgage from him. It will, of course, be open to the auction purchaser to re-deem the subsequent mortgagee himself, if he so likes provided there is no other impediment. But this circumstance cannot deprive the puisne mortgagee of his right to redeem the prior mortgage so long as he himself is not redeemed.

3. So far as the appropriate article of the Limitation Act is concerned, I do not think Miait any other article than Article 148 can apply. If the auction purchaser is to be treated as the assignee of the prior mortgagee's rights as in my view he should be taken to be where the puisne mortgagee was not made a party to the prior mortgagee's suit, Article 148 in terms applies. The assignee of a mortgagee is 'mortgagee' within the meaning of that article. Indeed according to Ashfaq Ahmad v. Wazir Ali 14 All 1, even a suit by a co-mortgagor for redemption of his share against another co-mortgagor who had previously redeemed the entire mortgage is governed by Article 148, This view is based on the assumption that the redeeming co-mortgagor steps into the shoes of the mortgagee and should be regarded as the mortgagee. A fortiori the assignee of the mortgagee rights must be considered by the mortgagee for the purposes of Article 148. In this view the period of limitation is clearly 60 years reckoned from the date of the prior mortgage.

4. The learned advocate for the appellant has referred to Nidhiram Bandopadhya v. Surbessur Biswas (1910) 5 I.C. 877, Appayya v. A. Venkatramayy 1925 Mad 150 and Nil Madhab Mahapatra v. Joy Gopal Mahanti 1926 Cal 560 in support of hi8 contention that Article 132 applies to such a case. These cases proceed on the view that the puisne mortgagee ia virtually enforcing his own mortgage when he sues the auction-purchaser in She prior mortgagee's suit for redemption an the allegation that he was not given an opportunity to redeem in the prior 'mortgagee's suit not having been made party to it. It seems to be implied that the prior mortgage having been completely enforced does not subsist and the auction-purchaser cannot be considered to be the mortgagee within the meaning of Article 148 which therefore does not apply. With all respects, I think that whatever may be the correct article applicable to this class of oases, Article 132 cannot be applied without violence to the language used in that article which is 'to enforce payment of money charged upon immovable, property.' According to Column 3, the period of limitation is to run from the time 'when the money sued for becomes due.' It is impossible to regard the puisne mortgagee's auit for redemption as a suit to enforce payment of money charged upon immovable property. The puisne mortgagee is not suing for enforcement of his own mortgage at all. He is enforcing his right to redeem which he has under B. 91, T. P. Act. Be that as it may, I am bound to follow the rulings of this Court which makes it perfectly clear that the. period of limitation for such a suit is 60 vears. It is enough for me to refer to Priya Lal v. Bohra Champa Ram 1923 All 271.

5. The result is that this appeal fails and La dismissed with costs. Leave to appeal under the Letters Patent is asked for and is granted.


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