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Alliance Bank of Simla Ltd. Vs. F.B. Powel - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1938All651
AppellantAlliance Bank of Simla Ltd.
RespondentF.B. Powel
Excerpt:
- .....from one m.g. powel. it is not disputed that this mortgage was made prior to 1st march 1928. one mohammad ismail obtained a simple money decree against the mortgagor on 23rd january 1928 and in execution of that decree attached the mortgagor's interest in the property which was the subject of the mortgage in favour of the appellant. on 1st may 1928, the appellant filed a suit on the foot of the mortgage without impleading mohammad ismail as a party thereto. the preliminary decree in the suit was passed on 6th june 1928 and it was made final on 12th april 1929. it appears that in the meantime mohammad ismail had pursued the execution of his simple money decree and had put the mortgaged property to an auction sale and had purchased it himself. this sale was confirmed by the court on 23rd.....
Judgment:

Mulla, J.

1. This is an execution first appeal by the decree-holder, the Alliance Bank of Simla, Ltd. in liquidation through the liquidators. The appeal is directed against an order passed by the learned Civil Judge of Saharanpur in the course of an execution proceeding allowing an objection made by the respondent F. B. Powel that he had been wrongly impleaded by the appellant decree-holder as a representative of the judgment-debtor. The relevant facts of the case may briefly be stated as fol. Lows : The appellant held a simple mortgage from one M.G. Powel. It is not disputed that this mortgage was made prior to 1st March 1928. One Mohammad Ismail obtained a simple money decree against the mortgagor on 23rd January 1928 and in execution of that decree attached the mortgagor's interest in the property which was the subject of the mortgage in favour of the appellant. On 1st May 1928, the appellant filed a suit on the foot of the mortgage without impleading Mohammad Ismail as a party thereto. The preliminary decree in the suit was passed on 6th June 1928 and it was made final on 12th April 1929. It appears that in the meantime Mohammad Ismail had pursued the execution of his simple money decree and had put the mortgaged property to an auction sale and had purchased it himself. This sale was confirmed by the Court on 23rd April 1929, that is subsequent not only to the preliminary decree obtained by the appellant, but also the final decree. On 8th May 1929 Mohammad Ismail transferred the rights which he had so acquired to the respondent F.B. Powel under a sale deed. On 25th March 1935 the appellant applied for execution of his mortgage decree and impleaded the respondent as a representative of the judgment-debtor. The respondent objected that he should not have been so impleaded, and that objection has been allowed to prevail by the learned Civil Judge of Saharanpur. Hence the present appeal.

2. The argument on behalf of the appellant] is that Mohammad Ismail was a representative of the judgment-debtor in the eye of the law and his interests having passed to the respondent, the latter occupies the same position and was consequently rightly impleaded in the course of the execution proceeding. Reliance is placed principally upon the Pull Bench case in Gulzari Mal v. madho Ram (1904) 26 All. 447, which has been followed in a later case of this Court, Ram Autar Sahu v. Bate Krishna : AIR1936All479 . In the Pull Bench case Banerji J., who was one of the learned Judges who decided that case, made the following observations which are relevant to the present case:

It seems to me that every purchaser of the judgment-debtor's interest who is bound by the decree is a representative of the judgment-debtor within the meaning of the Section, whether he is a purchaser under a private sale from the judgment-debtor or a purchaser at a compulsory sale held in execution of a decree obtained against the judgment-debtor. I can see no distinction in principle between the case of a purchaser under a private sale and that of an auction-purchaser, provided that the decree in execution can be en-forced against him, In my judgment, the word 'representative' in Section 244 means a person against whom the decree can be enforced either as the legal representative of the judgment-debtor or as his representative in interest. In Radha Madhub holder v. Manohur Mukerji (1888) 15 Cal. 756 their Lordships of the Privy Council held that a person who had, during the pendency of a mortgagee's suit for sale, purchased the mortgaged property in execution of a simple decree for money, was bound by the proceedings and the decree in the suit. Such a purchaser is undoubtedly the representative in interest of the judgment-debtor as regards the property purchased by him.

3. The authority of this case was followed in the later case in Ram Autar Sahu v. Bate Krishna : AIR1936All479 in which the learned Judges of this Court held that

an auction-purchaser purchasing property at a sale in execution of a simple money decree against a judgment-debtor whose property has been ordered to be sold in a mortgage suit, is a representative of the judgment-debtor within the meaning of Section 47.

4. In view of these authorities it is obvious that the respondent in this case had been properly impleaded as a representative of the appellant's judgment, debtor whose right, title and interest had been purchased at first by Mohammad Ismail and subsequently transferred by him to the respondent. It appears that in the lower Court the respondent relied in support of his contention on the case in Hoshiar Singh v. Gobardhan Das : AIR1934All1027 . Having carefully considered that case, I find that it was decided upon its own peculiar circumstances, and the question which is now in issue was not really considered and decided there. It has however been argued on behalf of the respondent that under Order 34, Rule 1, Civil P.C., it was incumbent on the appellant to implead Mohammad Ismail as a party to the mortgage suit inasmuch as Mohammad Ismail being an attaching creditor was one of the persons who under Section 91, T.P. Act, as it then stood, had a right to redeem. There has been a great conflict of authority on the question as to whether an attaching creditor is a necessary party to a mortgage suit. In the earlier cases decided by almost all the High Courts it was no doubt held that an attaching creditor was a necessary party. But the trend of authority has lately undergone a change and just the contrary view has been held by various High Courts. In Kiernander v. Benimadhab Khettri : AIR1931Cal763 Mukerji and Mitter JJ. held that an attaching creditor had no charge or lien on the property subject to a mortgage upon which a decree had been obtained, and he was not a necessary party to the mortgage suit. Again in the Full Bench case in Subramanian Chettiar v. Sinnammal (1930) 17 A.I.R. Mad. 801 their Lordships of the Madras High Court arrived at the same result and held that:

An attaching decree-holder has no interest in, or charge on, the immovable property attached and as such is not a necessary party within the meaning of Order 34, Rule 1, Civil P.C., to a suit by a mortgagee. Hence, if under the decree in a mortgage suit to which he is not a party, the property is sold before he redeems it, he loses the right to redeem which was given to him by Section 91(f), T.P. Act, (since repealed). (Headnote of Section 3 Mad 881).

5. In a Division Bench case of this Court, Kora Mal v. Raghubir Lonia : AIR1929All861 , Bennet and Iqbal Ahmad JJ. pointed out that:

An attaching creditor has no right to be made a party in a mortgage suit because his attachment creates no lien or title, but simply prevents alienation of the property attached in accordance with the provisions of Section 64, Civil P.C.

6. In view of all these authorities, I do not think there is much force in the contention of the learned Counsel for the respondent, and I am not prepared to hold that Mohammad Ismail was a necessary party to the suit brought by the appellant on the foot of his mortgage on 1st May 1928. Again it is clear that all that Mohammad Ismail had done at the date of that suit was to have attached the mortgaged property in execution of his decree; but the rights which he acquired in the property by virtue of the confirmation of sale in his favour on 23rd April 1929 were subsequent both to the preliminary and the final decrees in the mortgage suit. In my view, there can be no room for doubt that the rights which Mohammad Ismail acquired in these circumstances were subject to the mortgage decree which had been obtained by the appellant, and Mohammad Ismail was undoubtedly a representative of the mortgagor, being a person who had acquired the interest of the mortgagor in the property. Mohammad Ismail would have been a proper party to the execution proceedings, and the respondent, who stands in the shoes of Mohammad Ismail, must also be deemed to be a proper party to those proceedings. I hold therefore that a respondent had rightly been impleaded in the execution proceeding by the appellant and his objection should not have been allowed to prevail by the lower Court. The result therefore is that I allow this appeal and, setting aside the order passed by the Court below, direct that the respondent shall be impleaded in the execution proceedings. The appellant shall have his costs from the respondent.


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