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Amar Deo Pande and ors. Vs. Gaya Pande - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All408; 71Ind.Cas.393
AppellantAmar Deo Pande and ors.
RespondentGaya Pande
Cases ReferredMusaheb Zaman Khan v. Inayat Ullah
Excerpt:
provincial small cause courts act (ix of 1887), schedule ii, article 42 - two persons mortgaging property belonging to one of them--'joint mortgagors'--personal liability. - .....of the provincial small cause courts act, which runs as follows: 'a suit by one of several joint mortgagors of immoveable property for contribution in respect of money paid by him for the redemption of the mortgaged property.' at the first sight this seems to exclude the case from the cognizance of a court of small causes, but it is urged on behalf of the respondent that, as a matter of fact, there are no co-mortgagors here. instead of executing two mortgages or two documents the two executants joined in executing this mortgage although the property of one of those only was hypothecated, as the property of one of the executants only was hypothecated it is contended that the two were not joint mortgagors, and, therefore, article 42 would be inapplicable. nevertheless both of the.....
Judgment:

Gokul Prasad, J.

1. This is an appeal by the plaintiffs for recovery of a certain sum of money which they had paid for the defendants. The facts are briefly as follows: Two persons, Tulshi and Gaya Prasad, executed a deed of mortgage in favour of one Ram Saran Singh on the 4th of July 1903. Under the terms of this mortgage each of the executants was liable to pay a definite amount out of the total consideration of Rs. 295. On the 17th of August 1907 the mortgagee got a preliminary decree for sale against both the mortgagors. This decree was made final on the 9th of October 1909 against both the judgment-debtors. The property was put up for sale and Tulshi having died his sons, the present plaintiffs, paid up the amount of the decree and thus saved their own property and the person of the defendants from further liability. They have now sued for recovery of the amount payable by the defendants. The claim was decreed by the Court of first instance but has been dismissed by the lower Appellate Court. The plaintiffs come here in second appeal. A preliminary objection has been taken by the defendant-respondent that no second appeal lies, as the suit was of the nature cognizable by the Court of Small Causes and valued at less than Rs. 500. On behalf of the appellants reference is made to Article 42 of the Second Schedule of the Provincial Small Cause Courts Act, which runs as follows: 'A suit by one of several joint mortgagors of immoveable property for contribution in respect of money paid by him for the redemption of the mortgaged property.' At the first sight this seems to exclude the case from the cognizance of a Court of Small Causes, but it is urged on behalf of the respondent that, as a matter of fact, there are no co-mortgagors here. Instead of executing two mortgages or two documents the two executants joined in executing this mortgage although the property of one of those only was hypothecated, As the property of one of the executants only was hypothecated it is contended that the two were not joint mortgagors, and, therefore, Article 42 would be inapplicable. Nevertheless both of the executants joined in executing this document and I think they can be brought within the words 'joint mortgagors' as used in Article 42. It is contended that as one of the executants had no interest in the mortgaged property and did not purport to transfer any interest therein, there was no mortgage on his behalf. As I have already said, it is quite true that the property of one of the executants only was mortgaged but the two executants were liable personally also for re-payment of the money. Under these circumstances the mere fact that the property of one of those persons only was mortgaged makes no difference, as both of them remained joint mortgagors. I, therefore, disallow the preliminary objection.

2. Coming now to the merits of the appeal I am of opinion that this appeal must prevail. The learned Judge of the lower Appellate Court has proceeded on an incorrect assumption of law, namely, that in India a mortgage does not carry with it a personal liability. I do not know where the learned. Judge has got hold of this proposition of law. So far as this Court is concerned it is concluded by an authority of a Division Bench. See the case of Musaheb Zaman Khan v. Inayat Ullah 14 A. 513 : A.W.N. (1892) 80 : 7 Ind. Dec. (N.S.) 698. So that the whole fabric of the learned District Judge's judgment falls to the ground. It is not denied that a certain amount of money was payable by Gaya Prasad, defendant, and another sum was payable by the plaintiff's fathar Tulshi. I, therefore, allow the appeal, set aside the decree of the lower Appellate Court and remand the case to that Court to be restored to its original number and to be tried according to law. Costs here and hitherto will abide the event.


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