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Beni Madho and anr. Vs. Sanwar Dat and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in64Ind.Cas.918
AppellantBeni Madho and anr.
RespondentSanwar Dat and ors.
Excerpt:
mortgage - usufructuary mortgagee--deposit to set aside sale of mortgaged property--decree against mortgagor--mortgagor, liability of--civil procedure code (act v of 1908), order xxi, rule 89. - - this contention seems to be well-founded. even if his mortgage was not executed after attachment in execution of topsi's decree, since he held a possessory mortgage of the property, it was optional with him to have the sale set aside in order to avoid the trouble and risk as to loss of possession in case the sale continued good and the auction purchaser resorted to proceedings for his dispossession and his own possession by virtue of his auction-purchase......the latter caused these two groves to be sold by auction, the plaintiff deposited the amount of topsi's decree with the usual 5 per sent, payable to the auction-purchaser within thiry days of the date of the sale in accordance with the provisions of the code of civil procedure and had the sale set aside. he then brought the present suit to recover from the defendant the money paid by him. the court below has dismissed the claim on the ground that the payment was a voluntary one. it is contended that it was necessary for the plaintiff to have the sale set aside in order to maintain his possession of the groves undisturbed by the auction purchaser and that he could not be deemed to be a mere 'volunteer' when he made the payment. this contention seems to be well-founded. he had an.....
Judgment:

P.C. Banerji, J.

1. The plaintiff-applicant held a usufructuary mortgage of certain property, including two groves, from the defendant. In execution of a money-decree obtained against the defendant by one Topsi, the latter caused these two groves to be sold by auction, The plaintiff deposited the amount of Topsi's decree with the usual 5 per sent, payable to the auction-purchaser within thiry days of the date of the sale in accordance with the provisions of the Code of Civil Procedure and had the sale set aside. He then brought the present suit to recover from the defendant the money paid by him. The Court below has dismissed the claim on the ground that the payment was a voluntary one. It is contended that it was necessary for the plaintiff to have the sale set aside in order to maintain his possession of the groves undisturbed by the auction purchaser and that he could not be deemed to be a mere 'volunteer' when he made the payment. This contention seems to be well-founded. He had an interest in the mortgaged property by. reason of his usufructuary mortgage. Therefore, he is one of the persons who were entitled to apply to have the sale set aside under the provisions of the Code of Civil Procedure. It is true that he was a mortgagee of the property, but his mortgage was a usufructuary mortgage. If it was effected after attachment of the groves in execution of Topsi's decree, the mortgage could not prevail as against the auction-purchaser and he would have been liable to pay the amount of Topsi's decree if he wished to save the property. Even if his mortgage was not executed after attachment in execution of Topsi's decree, since he held a possessory mortgage of the property, it was optional with him to have the sale set aside in order to avoid the trouble and risk as to loss of possession in case the sale continued good and the auction purchaser resorted to proceedings for his dispossession and his own possession by virtue of his auction-purchase. In these circumstances it cannot be said that the plaintiff was a mere volunteer when be paid the amount of Topsi's decree and the additional amount payable under the law for having the auction-sale set aside. I accordingly allow the application, vary the decree of the Court below and decree the plaintiff's claim in full. The plaintiff will have his costs in the Court below and in this Court.


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