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Khan Chand and anr. Vs. Ghasita and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All350
AppellantKhan Chand and anr.
RespondentGhasita and anr.
Cases ReferredIndarpal Singh v. Mewalal
Excerpt:
- - those were not cases like the present where the mortgage existed both at the time of the institution of the suit and at the time of the decree......this appeal is instituted by certain judgment-debtors. they are judgment-debtors under a simple money decree which was obtained by the creditors on foot of a mortgage of 1908. one chet ram had executed a usufructuary mortgage in favour of the ancestors of the decree-holders. the objectors (judgment-debtors) are some of the successor-in-interest of chet ram, we were told that two-thirds of the mortgage had been redeemed and the mortgagees sued on the basis of the mortgage for recovery of one-third of the amount of the mortgage and obtained a simple money decree. the decree was prepared in the following terms:suit is decreed with costs against the assets of chet ram in the hands of the defendants who will be entitled to recover possession of the mortgaged property comprised in this.....
Judgment:

Dalal, J.

1. This is a second appeal within the cognizance of a single Judge of this Court. Our brother Sen has certified it to be fit for hearing by a Bench of two Judges. That is how the appeal has come for hearing before us. This appeal is instituted by certain judgment-debtors. They are judgment-debtors under a simple money decree which was obtained by the creditors on foot of a mortgage of 1908. One Chet Ram had executed a usufructuary mortgage in favour of the ancestors of the decree-holders. The objectors (judgment-debtors) are some of the successor-in-interest of Chet Ram, we were told that two-thirds of the mortgage had been redeemed and the mortgagees sued on the basis of the mortgage for recovery of one-third of the amount of the mortgage and obtained a simple money decree. The decree was prepared in the following terms:

Suit is decreed with costs against the assets of Chet Ram in the hands of the defendants who will be entitled to recover possession of the mortgaged property comprised in this mortgage-deed dated 14th February 1908 and which is still in possession of the plaintiffs under their decree. The plaintiffs will have no title or concern left with the mortgaged property after the passing of this decree. The plaintiffs will get six per cent. pending and future interest.

2. In execution of this simple money decree the decree-holders put to sale the property mortgaged under the mortgage of 1908. The judgment-debtors objected and pleaded the bar of the provisions of Order 34, Rule 14, Civil P.C. The first Court accepted the objection and dismissed the application for execution. This decree however was set aside by the Court of first appeal.

3. In this second appeal the same point is again raised that the execution of the decree in the manner in which it was sought was barred by the provisions of Order 34, Rule 14, Civil P.C. It will be sufficient to quote the provisions of that rule to see that those provisions apply to the present case:

Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to -sale otherwise than by instituting a suit for -sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order 2, Rule 2.

4. In the present case also the decree is obtained for payment of money on foot of the mortgage and not by way of compensation for the loss of security of the mortgage. The simple money decree will not bar a suit for sale as is laid down in the rule. On the other side it was argued that the direction in the decree under execution that the plaintiffs will have no title or concern left with the mortgaged property after the passing of this decree would prevent a suit 'for sale. We do not agree with this contention. All these words in the decree were entered so as to make it certain that the mortgagees may not continue in possession of the property in spite of the money decree. In reality those directions brought an end to the possession of the mortgagees but not to their title to recover money under the mortgage. As pointed out by our brother Sen the mortgage was very much alive at the time of the institution of the suit and at the moment when the decree was passed. The mortgagees were actually in possession when the decree was passed and that was the reason why clear directions had to be given so that the mortgagees may be compelled to give up possession in favour of the mortgagor. On behalf of the respondents Mr. Panna Lal quoted the following rulings : Chedi Lal v. Saadatunnissa [1917] 39 All. 36 and Tansukh Rai v. Sri Gopal A.I.R. 1921 All. 131. We have studied the facts of both those rulings and find that in both these cases at the time of the institution of the suit and at the time of the decree the security of the mortgage had come to an end and no -mortgage existed. Those were not cases like the present where the mortgage existed both at the time of the institution of the suit and at the time of the decree. The Bench ruling which would cover the facts of this case is that of Indarpal Singh v. Mewalal [1914] 36 All. 264. It was held there that a mere averment in the former suit for simple money decree that the plaintiffs gave up their right under the mortgage for the purpose of that suit is not in the nature of an agreement and cannot be regarded as an extinguishment of the mortgagee rights. The present case is much stronger. There was no agreement and the extinction of the mortgage is based on certain terms of the decree. In our opinion they do not imply such extinction. We think that the test applicable to these cases would consist of an inquiry whether the mortgage security did or did not exist at the time the simple money decree was obtained. If it did exist, the provisions of Order 34, Rule 14, Civil P. C, must be given effect to. If it did not, then it will be found possible in certain cases to sell the mortgaged property in execution of the money decree.

5. We set aside the decree of the lower appellate Court and restore the decree of the trial Court with costs of all the Courts.


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