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Chhatur Kunwar Vs. Jagannath Prasad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1923)ILR45All149
AppellantChhatur Kunwar
RespondentJagannath Prasad
Cases ReferredChhagan Lal v. Muhammad Husain Khan. We
Excerpt:
act no. iv of 1882 (transfer of property act), section 89 - mortgage--effect of a decree absolute under the transfer of property act--prior and subsequent mortgagees. - - he contended that he had priority over the mortgage of the 19th of february, 1910. on the other hand the plaintiff musammat chhatur kunwar argued that her husband, having advanced money for the satisfaction of the decree of the 29th of august, 1906, and having satisfied the said decree, stood in the shoes of the prior mortgagee nand ram, whose mortgage of the 27th of april, 1906, was prior to that of jagannaffi prasad......the decree of the 29th of august, 1908. he is dead. on the 27th of march, 1919, his widow musammat chhatur kunwar instituted the suit, out of which this appeal has arisen, for the recovery of rs. 1,700 plus interest due upon the mortgage of the 19th of february, 1910, in favour of her husband, by sale of the mortgaged property. jagannath prasad was also impleaded as a defendant in the case. he was the principal contesting defendant. the claim was resisted on various pleas, with one of which alone we are at present concerned here. he contended that he had priority over the mortgage of the 19th of february, 1910. on the other hand the plaintiff musammat chhatur kunwar argued that her husband, having advanced money for the satisfaction of the decree of the 29th of august, 1906, and having.....
Judgment:

Rafiq and Stuart, JJ.

1. The facts which have given rise to this appeal are as follows: One Musammat Jainti Kunwar, a Hindu widow, executed a deed of simple mortgage in favour of one Nand Ram on the 27th of April, 1.906, hypothecating by way of security the village of Karara. Two years afterwards, on the 12th of May, 1908, she executed a deed of usufructuary mortgage in favour of Jagannath Prasad for Rs. 3,000, hypothecating by way of security the village of Karara, some other villages, and the mortgagee rights in four other villages. Under the terms of the said deed Jagannath Prasad was to pay off the mortgage of the 27th of April, 1906, and the money for that purpose was left in his hands, Jagannath Prasad did not pay off the prior mortgagee. The latter sued on foot of his mortgage and obtained a preliminary decree under Section 88 on the 14th of December, 1907, and a final decree on the 29th of August, 1908. In order to satisfy the said decree and save the property from sale, Musammat Jainti Kunwar executed a third deed of mortgage in favour of one Ram Narain on the 19th of February, 1910, in lieu of Rs. 1,700, the whole amount of which was left in the hands of Ram Narain for the payment of the decree of the 29th of August, 1908. Ram Narain has paid off the decree of the 29th of August, 1908. He is dead. On the 27th of March, 1919, his widow Musammat Chhatur Kunwar instituted the suit, out of which this appeal has arisen, for the recovery of Rs. 1,700 plus interest due upon the mortgage of the 19th of February, 1910, in favour of her husband, by sale of the mortgaged property. Jagannath Prasad was also impleaded as a defendant in the case. He was the principal contesting defendant. The claim was resisted on various pleas, with one of which alone we are at present concerned here. He contended that he had priority over the mortgage of the 19th of February, 1910. On the other hand the plaintiff Musammat Chhatur Kunwar argued that her husband, having advanced money for the satisfaction of the decree of the 29th of August, 1906, and having satisfied the said decree, stood in the shoes of the prior mortgagee Nand Ram, whose mortgage of the 27th of April, 1906, was prior to that of Jagannaffi Prasad. The contention of Jagannath Prasad was disallowed by both the courts below. He has come up in second appeal before us and argues that he has priority over Chhatur Kumvnr. He bases his argument on the statement that the mortgage of the 27th of April, 1906, having merged into the decree of the 29th of August, 1908, both the mortgage security and the right of redemption were extinguished. The mere fact thai, the husband' of Chhatur Kunwnr advanced money for the paymehE of that decree and paid off that decree would not revive the mortgage of the 27th of April, 1906, and thus give Chhatur Kunnwar priority over Jagannath Prasad. In support of his contention Jagannath Prasad relies on the cases of Chhaqan Lal v. Muhammad Husain Khan (1919) I.L.R. 41 All. 456 and Het Ram v. Shadi Ram (1918) I.L.R. 40 All. 407. For Musammat Chhatur Kunwar the contention is that the case of Het Ram v. Shadi Ram has been reconsidered by their Lordships of the Privy Council, in a subsequent case, namely Sukhi v. Ghulam Safdar Khan (19121) I.L.R. 43 All. 469. We find that in the last mentioned case the decision of their Lordships has turned upon the consideration of the omission of the following words of Section 89 of Act IV of 1882, namely, 'and thereupon the defendant's right to redeem and the security shall both be extinguished.' In the new Civil Procedure Code of 1908, in Order XXXIV, Rule 5, these words find no place. In Sukhi's case the final decree was passed under the new Act and not under Act IV of 1882. In the appeal before us the decree of the 29th of August, 1882. In the appeal before us the decree of the 29th of August, 1908, was passed and framed under Section 89 of Act IV of 1882. In the case of Chhagan Lal v. Muhammad Husain Khan (1919) I.L.R. 41 All. 456 which was a Pull Bench case of this Court, it was decided that a final decree passed under Section 89 of Act IV of 1882 had the effect of extinguishing both the security and the right of redemption. In other words, the mortgage in respect of which the decree was passed was extinguished. Musammat Chhatur Kunwar in the present case cannot claim priority over Jagannath Prasad, in view of the decision in the case of Chhagan Lal v. Muhammad Husain Khan. We therefore allow the appeal, set aside the decrees of the courts below, and remand the case to the first court through the lower appellate court for trial on the merits. It will be open to the parties to put in fresh pleas with regard to the statement made by the learned Counsel lot Chhatur Kunwar before us that the amount claimed by Jagannath Prasad is not due to him, and any other pleas that might be urged by either Chhatur Kunwar or Jagannath Prasad. The remand is under Order XLI, Rule 23. Costs here and hitherfo will abide the result.


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