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Mohammad Munir-ud-dIn Khan Vs. Mahmood Bakhsh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in63Ind.Cas.91
AppellantMohammad Munir-ud-dIn Khan
RespondentMahmood Bakhsh and ors.
Excerpt:
provincial insolvency act (iii of) - mortgage prior to adjudication of mortgagor as insolvent--mortgagee, right of, ft realise debt-- transfer by receiver. - - an attempt made by the mortgagee to realise his mortgage money out of the sale consideration paid by the plaintiff failed, and the question of his right to do this is not now notice me, at any rate, having so failed, the mortgagee went on with the execution of his decree......principal defendant in this case. the latter having obtained possession as auction-purchaser. the present suit is brought by the plaintiff on the strength of the transfer in his favour made by the receiver. there can be no doubt that by reason of section 16, clause (5) of the provincial insolvency act, iii of 1907, the mortgagee as a secured creditor had a right to proceed with his mortgage suit and to realise his security, in spite of the fact that the equity of redemption the amiri-ud-dins share had vested in the receiver, this point is made still clears; by a reference to section 111 of the same act. the receiver had no right to transfer to the plaintiff the insolvent's share in the house tree of the claims of the mortgagee. at most he could only transfer the equity of redemption......
Judgment:

Piggott, J.

1. This is a second appeal by a plaintiff, whose claim for actual possession by partition of a share in a certain house, along with mesne profits by way of damages, has been dismissed by both the Courts below. The share in question belonged to one Amir-ud-Diri, who was adjudicated an insolvent by an order of the 6th of January 1914. Amir-ud-Din, along with other owners of the house, had mortgaged the same by a simple mortgage and a suit on this mortgage has been instituted prior to the order of adjudication. A decree for sale was passed in the month of May 1914, followed by a decree absolute in the month of June 1915. In the meantime, that is to say, on the 13th of May 1915, the Receiver appointed by the Court purported to sell the snare of the insolvent Amir-ud-Din in the mortgaged house to the present plaintiff. An attempt made by the mortgagee to realise his mortgage money out of the sale consideration paid by the plaintiff failed, and the question of his right to do this is not now notice me, At any rate, having so failed, the mortgagee went on with the execution of his decree. He seld the entire house on the 8th of August 1916, the auation-purchaser being Mahmood Bakhsh, the principal defendant in this case. The latter having obtained possession as auction-purchaser. the present suit is brought by the plaintiff on the strength of the transfer in his favour made by the Receiver. There can be no doubt that by reason of Section 16, Clause (5) of the Provincial Insolvency Act, III of 1907, the mortgagee as a secured creditor had a right to proceed with his mortgage suit and to realise his security, in spite of the fact that the equity of redemption the Amiri-ud-Dins share had vested In the Receiver, This point is made Still clears; by a reference to section 111 of the same Act. The Receiver had no right to transfer to the plaintiff the insolvent's share in the house tree of the claims of the mortgagee. At most he could only transfer the equity of redemption. The only point which has been strongly argued before me is that the Receiver was a necessary party to the mortgage suit, and that, therefore, the decree absolute for sale, parsed after the appointment of the Receiver, would not bind any transferee from the Receiver, and therefore, the auction-purchaser under the subsequent sale obtained no title valid against the plaintiff. I very much doubt whether the Receiver was a necessary party to the mortgage suit, in view or the words 'in the same manna' in Section 16, Clause (5) of Ant III of 1907, to which I have already referred; but it is a sufficient answer to the appelaint's contention that a plaintiff can only succeed on the strength of his own title and not on the ground of any alleged or apparent weakness in the title of the defendant. The plaintiff by his transfer from the Receiver obtained at most the equity of redemption. He is layond all question not entitled (a) present possession over any share in the house in question, and the suit as brought has rightly been dismissed by both the Courts below. I have been asked not to express any opinion and whet jar a suit for redemption of the entire mortgage would or would not be maintainable by the present plaintiff and I refrain from doing so accordingly. I dismiss this appeal with costs, including fees on the higher scale.


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