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Abdul Ghafoor Vs. Qamar-ud-din - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All397; 71Ind.Cas.973
AppellantAbdul Ghafoor
RespondentQamar-ud-din
Excerpt:
transfer of property act (iv of 1882), section 60 - mortgage--prior mortgagee, suit by--puisne mortgagee not impleaded--subsequent mortgage, suit on--prior mortgagee not made party--auction-purchaser of prior mortgage heir of mortgagor--integrity of mortgage, whether broken--redemption--purchaser of second mortgage, whether entitled to piecemeal redemption. - .....which was mortgaged under this mortgage was subsequently mortgaged to one nanku lal in 1895. the prior mortgagee obtained a decree upon his mortgage in 1911 without impleading the subsequent mortgagee. the subsequent mortgagee obtained a decree upon his mortgage without making the prior mortgagee a party to his suit. the decree under the first mortgage was purchased by one mazhar ahmad. in execution of the decree upon the second mortgage the property was sold and was purchased by the present plaintiff. the original mortgagor is dead and mazhar ahmad, the purchaser of the decree under the first mortgage, has inherited a portion of the rights of the original mortgagor aziz-ud-din. as the second mortgagee was not made a party to the suit brought upon the prior mortgage, his right to.....
Judgment:

1. This appeal arises out of a suit for redemption of a mortgage made on the nth of February 1893. The property which was mortgaged under this mortgage was subsequently mortgaged to one Nanku Lal in 1895. The prior mortgagee obtained a decree upon his mortgage in 1911 without impleading the subsequent mortgagee. The subsequent mortgagee obtained a decree upon his mortgage without making the prior mortgagee a party to his suit. The decree under the first mortgage was purchased by one Mazhar Ahmad. In execution of the decree upon the second mortgage the property was sold and was purchased by the present plaintiff. The original mortgagor is dead and Mazhar Ahmad, the purchaser of the decree under the first mortgage, has inherited a portion of the rights of the original mortgagor Aziz-ud-Din. As the second mortgagee was not made a party to the suit brought upon the prior mortgage, his right to redeem the prior mortgage did not become extinguished, and as the plaintiff is the purchaser under the second mortgage he has the right to redeem the prior mortgage. He sought in this suit to enforce that right but instead of seeking to redeem the whole property on payment of the whole of the mortgage money, he claimed the right to redeem a portion of the mortgaged property upon payment of a proportionate part of the mortgage-money. This claim he advanced on the allegation that the integrity of the prior mortgage had been broken up by reason of Mazhar Ahmad, the purchaser of the decree under the prior mortgage, having inherited a part of the mortgaged property and the rights of the mortgagor and mortgagee having thus become vested in the same person. The Courts below dismissed the claim on the ground that the plaintiff could not redeem piecemeal upon payment of a part of the mortgage-money, and this decision has been affirmed by a learned Judge of this Court. In our judgment the learned Judge of this Court was right in the conclusion at which he arrived. All the rights which the original mortgagor had were mortgaged to the second mortgagee subsequent to the prior mortgage. Upon the sale of all those rights in execution of the decree on the subsequent mortgage the whole of those rights (that is, the whole of the equity of redemption of the prior mortgage) vested in the auction purchaser, namely, the present plaintiff, and no part of the equity of redemption could become vested in Mazhar Ahmad as successor to Aziz-ud-Din, the original mortgager. Therefore it cannot be said that the integrity of the prior mortgage was broken up, and that mortgage could be redeemed piecemeal. In this view the present plaintiff's suit has been rightly dismissed as being a suit in which he sought to redeem the mortgage piecemeal, and we affirm the decision of Mr. Justice Stuart and dismiss the appeal with costs including fees on the higher scale.


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