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Syed Mahmud Hasan and ors. Vs. Mohammad Abdul Hamid Khan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in146Ind.Cas.477
AppellantSyed Mahmud Hasan and ors.
RespondentMohammad Abdul Hamid Khan
Cases Referred and Ram Partap Panday v. Lalu Panday
Excerpt:
civil procedure code (act v of 1908), section 47, order xxi, rule 66 - sale proclamation--decree for sale--rights of parties claimed under prior encumbrances to benotified--order as to whether such rights can be claimed--whether order under section 47--appealability. - - we overrule the preliminary objection, but we modify the order under appeal so far as it may be construed as deciding the rights of parties in regard to the mortgage of 1918. it should be clearly understood that the respondent's claim in reference to that deed is merely notified under order xxi, rule 66, and that the order of the subordinate judge of this court is not an adjudication of the rights of the parties as regards the question in dispute which will remain open for decision when it arises in proper proceedings......respect of the mortgage of 1918. the present controversy arose in course of the preparation of the sale proclamation under order xxi, rule 66, civil procedure code. the respondent then put in an application praying that the encumbrance due to him under the deed of 1918 be mentioned in the sale proclamation. in fact his prayer was that the property should be sold subject to that mortgage. this was objected to by the appellants. the learned subordinate judges has made inconsistent observations in his judgment as regards the correct view of law applicable to the circumstances of the case. he observed that:the objector was a necessary party and impleaded as a puisne mortgagee; in my opinion he was bound to set up his prior mortgage. however in view of the case of bansi dhar v. jugmohan das.....
Judgment:

1. This appeal has arisen from execution proceedings following a decree for sale passed on foot of the mortgage deed dated May 4, 1921. The appellant is the decree-holder. The respondent before us was one of the defendants in the mortgage. The facts are that one Mahfuzunnisa executed three mortgage deeds successively, the first, in 1918, in favour of Lala Chuni Lal; the second, dated May 4, 1921, in favour of Mahmud Hasan and others, the appellants before us; and the third dated April 27, 1923, in favour of Kunwar Abdul Hamid, the contesting respondent before us. The respondent, Kunwar Abdul Hamid, had been directed by the terms of the mortgage deed in his own favour to pay off the mortgage of 1918 in favour of Lala Chunni Lal. He claims to have done so out of the consideration of the mortgage money in his hands. When Mahmud Hasan and others instituted their suit for enforcement of the mortgage of May 4, 1921, they impleaded Kunwar Hamid, the respondent, but the latter did not put in appearance and did not contest the suit. It is said on his behalf that inasmuch as he was expressly impleaded in his capacity as a subsequent mortgagee it was not necessary for him to enter appearance and to set up the mortgage of 1918 as a shield. A decree was passed in favour of the appellant for sale of the mortgaged property without any reservation in favour of the respondent in respect of the mortgage of 1918. The present controversy arose in course of the preparation of the sale proclamation under Order XXI, Rule 66, Civil Procedure Code. The respondent then put in an application praying that the encumbrance due to him under the deed of 1918 be mentioned in the sale proclamation. In fact his prayer was that the property should be sold subject to that mortgage. This was objected to by the appellants. The learned Subordinate Judges has made inconsistent observations in his judgment as regards the correct view of law applicable to the circumstances of the case. He observed that:

The objector was a necessary party and impleaded as a puisne mortgagee; in my opinion he was bound to set up his prior mortgage. However in view of the case of Bansi Dhar v. Jugmohan Das 110 Ind. Cas. 79 : A.I.R. 1929 Oudh 83 : 5 O.W.N. 210 : 3 Luck 472 reported in A.I.R. 1929 Oudh 88 and Ram Partap Panday v. Lalu Panday : AIR1930All163 , and equities of the case I lean on the side of the objector and order his prior encumbrance will be shown in the sale proclamation.

2. If the learned Subordinate Judge intended to adjudicate on the rights of the parties and passage quoted above embodies his decision as regards them, he travelled beyond the requirements of Order XXI, Rule 66, Civil Procedure Code. In drawing up a proclamation it was enough to mention that the present respondent claims all the rights of the mortgagee under the deed of 1918 by subrogation. Whether those rights subsist or have been in any way affected in consequence of his omission to set them up in the appellants' suit is a question which did not call for a decision at that stage. The intending purchasers should know that such a claim is made by the respondent. But having regard to the terms of the order of the learned Subordinate Judge it is clear that he did not realize the significance of the proceedings before him.He has pronounced an opinion as to whether the respondent is entitled to claim the rights of the mortgagee under the deed of 1918. To that extent his order is one under Section 47, Civil Procedure Code. We mention this aspect of the case as the learned Advocate for the respondent took a preliminary objection that no appeal lies. In the view which we take of the nature of the Subordinate Judge's order we think that it is one under Section 47 and therefore appealable. We overrule the preliminary objection, but we modify the order under appeal so far as it may be construed as deciding the rights of parties in regard to the mortgage of 1918. It should be clearly understood that the respondent's claim in reference to that deed is merely notified under Order XXI, Rule 66, and that the order of the Subordinate Judge of this Court is not an adjudication of the rights of the parties as regards the question in dispute which will remain open for decision when it arises in proper proceedings. In this view the appeal is partly allowed. The order of the lower Court is modified. The respondent's claim in reference to the mortgage of 1918 shall be mentioned in the sale proclamation in the light of the remarks made by us above. Parties shall pay their own costs in both courts.


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