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Bihari Lal Vs. Deoki Nandan Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All350; 24Ind.Cas.867
AppellantBihari Lal
RespondentDeoki Nandan Lal and ors.
Excerpt:
mortgage, - mortgagee's right to decree for sale. - - the plaintiff will not be entitled to put the decree into execution against any of the properties unless and until this deficiency is made good......reading the decree and the plaint together its more natural meaning is that it was a decree for sale on foot of a mortgage. it is contended on behalf of the respondents that no decree for sale could legally be made on foot of a usufructuary mortgage. even if this were so, if the usufructuary mortgagee succeeded in getting a decree for sale which became final, the property could be legally sold. the learned vakil for the respondents has cited some authorities in which it was hold that a decree for sale could not be made on foot of a usufructuary mortgage unless there was a covenant for payment of the money. the only use that can be made of this contention is to argue that the court should construe the decree us a regular rather than as an irregular decree. i am very doubtful whether.....
Judgment:

Henry Richards, C.J.

1. This appeal arises out of a suit brought on foot of a mortgage, dated the 29th of March 1870. The mortgaged property consisted of two sets of property. The present appeal relates only to a plot of muafi. The first Court excluded this plot of muafi from the decree on the ground that it was not subject to the mortgage or liable to be sold for realising the amount thereof. The lower Appellate Court has modified the decree of the Court of first instance by including the plot in question. I have already mentioned that the mortgage sued on is dated the 29th of March 1870. The plot in question was mortgaged by way of usufructuary mortgage on the 4th of September 1861, a decree was obtained on the 26th of August 1867 by the mortgagee under this usufructuary mortgage and the property was purchased by the defendant or his prodecessor-in-title under a said held under the decree or August 1867 in 1872. The real question is whether or not the decree of the 26th of August 1887 was a decree for sale of the mortgaged property or a simple money decree. In my judgment, reading the decree in conjunction with the petition of plaint, it is quite open to the construction that it was a mortgage-decree. No special form of mortgage-decree was prescribed at that time and reading the decree and the plaint together its more natural meaning is that it was a decree for sale on foot of a mortgage. It is contended on behalf of the respondents that no decree for sale could legally be made on foot of a usufructuary mortgage. Even if this were so, if the usufructuary mortgagee succeeded in getting a decree for sale which became final, the property could be legally sold. The learned Vakil for the respondents has cited some authorities in which it was hold that a decree for sale could not be made on foot of a usufructuary mortgage unless there was a covenant for payment of the money. The only use that can be made of this contention is to argue that the Court should construe the decree us a regular rather than as an irregular decree. I am very doubtful whether the authorities cited bind this Court. In my judgment where the money is secured on property, whether it be by usufructuary or other mortgage, the mortgagee is entitled to sell the property to realise the amount of his mortgage subject only to the limitation imposed by the provisions of the Transfer of Property Act. At the time when this mortgage was made and decree passed the Transfer of Property Act had not corns into force. The very cases cited show that rightly or wrongly many decrees for sale on foot of usufructuary mortgages were in fact made. Holding as 1 do that the decree read with the plaint was a decree for sale, I think that the decree of the Court of first instance was correct and ought to be restored. The decision of the case depends upon the construction of the decree which was passed in favour of the appellant's predecessor-in-title. I would allow the appeal.

Tudball, J.

2. After full consideration of the facts I agree with the learned Chief Justice in his interpretation of the decree of the 26th of August 1867 as being a decree for sale. In this view it is quite clear that the present mortgagee has no right whatsoever to touch the property in question when attempting to recover the money due on his mortgage.

3. I would allow the appeal.

4. By the Court.--We allow the appeal, set aside the decree of the lower Appellate Court and restore the decree of the Court of first instance with costs in both Courts including in this Court-fees on the higher scale.

5. There is a deficiency payable of Rs. 16-4 by the plaintiff in respect of the lower Court. The plaintiff will not be entitled to put the decree into execution against any of the properties unless and until this deficiency is made good.


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