Skip to content


Lala Dwarka Dass Vs. Rai Bahadur Shah Durga Prasad - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in82Ind.Cas.80
AppellantLala Dwarka Dass
RespondentRai Bahadur Shah Durga Prasad
Excerpt:
civil procedure code (act v of 1908), section 47 - decree, execution of--dispossession in execution--party dispossessed, remedy of--suit for recovery of possession, whether maintainable. - .....of the code of civil procedure. the plaintiff is not entitled to possession as mortgagee, because the mortgage in his favour was a simple mortgage. he is not entitled to possession as owner of the equity of redemption, because the equity of redemption has been sold and purchased by the defendant. his only right, if any, under the decree was to bring the property to sale for the enforcement of his prior lien. the suit is also barred under section 47. the plaintiff was a party to the decree. he has been dispossessed under the terms of the decree and his remedy for recovery of possession was by application to the execution court. it is not possible now to treat this suit as an application under section 47 because the defendant obtained possession in the year 1915 and the present suit was.....
Judgment:

1. In 1906 two simple mortgages were executed over the property in suit one in favour of the plaintiff and the other in favour of one Bhagirath. The defendant acquired the right of Bhagirath and brought the property to sale under his mortgage. The plaintiff was made a party to the suit. It should be mentioned that the plaintiff had also acquired the equity of redemption from the original mortgagor and was in possession of the property in that capacity. The decree in the defendant's suit was for sale of the property subject to the prior lien of the plaintiff though it is said that that lien was not entered in the final decree. On the property being brought to sale, the defendant purchased it himself. He thereupon obtained, possession through the Court as against the plaintiff. He also obtained mutation of names in the revenue papers. It is admitted in the plaint and has been admitted throughout the proceedings that the plaintiff has lost possession. He brings the present suit, not for recovery of his mortgage money under his prior lien, but to be restored to possession of the property.

2. His suit has been dismissed by both the Courts below and it appears to us that it has been rightly dismissed both on the merits and as being barred by Section 47 of the Code of Civil Procedure. The plaintiff is not entitled to possession as mortgagee, because the mortgage in his favour was a simple mortgage. He is not entitled to possession as owner of the equity of redemption, because the equity of redemption has been sold and purchased by the defendant. His only right, if any, under the decree was to bring the property to sale for the enforcement of his prior lien. The suit is also barred under Section 47. The plaintiff was a party to the decree. He has been dispossessed under the terms of the decree and his remedy for recovery of possession was by application to the Execution Court. It is not possible now to treat this suit as an application under Section 47 because the defendant obtained possession in the year 1915 and the present suit was not brought till the year 1920.

3. We accordingly dismiss the appeal with costs including in this Court fees on the higher scale.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //