1. The plaintiff is the appellant. The second defendant respondent herein had mortgaged a superstructure. The plaintiff obtained a decree in O. S. No. 345 of 1951. In land acquisition proceedings the site and the superstructure were acquired, compensation being granted to the owner of the site and to the 2nd defendant as the owner of the superstructure. The plaintiff as mortgagee did not put forward his claims in the acquisition proceedings with the result that the compensation amount was paid to the 2nd defendant. This was subsequent to the decree which the plaintiff had obtained. Thereupon, the plaintiff laid the suit against the State of Madras and the 2nd defendant for recovery of the amount of his mortgage claim. The learned District Munsif, Tiruvarur, dismissed the suit as against the State of Madras but passed a decree against the 2nd defendant. The 2nd defendant appealed and his contention was that the plaintiff's remedy was not personally against him but only against the superstructure.
He claimed that the mortgage had been effected by one Chinnasami Naicker. The 2nd defendant had purchased the property in a court auction in execution of a decree and the property had been so purchased by him subject to the charge in favour of the plaintiff's father who was the mortgagee. It was also contended that the suit was barred and that the 2nd defendant was not liable to pay the amount received by him as compensation for the acquisition of the superstructure.
2. The learned Subordinate Judge accepted the position that the compensation amount was in the nature of a substituted security and that the plaintiff derived a right to make a claim before the Land Acquisition Officer and was also entitled to be paid out of the sum awarded as compensation by virtue of the provisions of Section 73 of the Transfer of Property Act. But the appellate court thought that since the plaintiff had obtained both a preliminary and final decree in his mortgage suit 0. Section No. 345 of 1951, it was not competent for him to lay a second suit for enforcing the security and that his remedy was only to proceed by way of execution of the decree which he had obtained. Accordingly, the suit was dismissed. Hence this second appeal.
3. It is undoubtedly true that the plaintiff's action by way of a suit was misconceived in the circumstances of the case. When once it is conceded that upon his mortgage claim he had obtained a preliminary decree and final decree for the sale of the property mortgaged, his remedy must naturally be only by way of proceedings in execution of his final decree. Neither Section 73 of the Transfer of Property Act, nor Section 31 of the Land Acquisition Act gives the plaintiff a new cause of action.
Under Section 73(2) of the Transfer of Property Act, it is provided that where a mortgaged property or any part thereof is acquired under the Land Acquisition Act, the mortgagee shall be entitled to claim payment of the mortgage money in whole or in part out of the amount due to the mortgagor as compensation. This provision merely enacts the principle of substituted security, that is to say, that the mortgagee is for the purpose of his security, entitled not only to proceed against the mortgaged property but against anything that is substituted for it. The mortgagee would not lose his rights only for the reason that he had tailea to exercise his right to claim compensation before the Land Acquisition Officer. That this is so is made clear by the third proviso to Section 31(2) of the Land Acquisition Act which states that
'nothing herein contained shall affect the liability of' any person who may receive the whole or any part of any compensation awarded under this Act to pay the same to the person lawfully entitled thereto.'
The right of a mortgagee is therefore maintained by the two provisions referred to. The short question, however, is the manner in which that right can be enforced in the circumstances of the present case.
4. In the Secretary of State v. Kuppuswami Chetti, 46 MLJ 36 : AIR 1924 Mad 521, the question arose whether once the compensation in respect of the mortgaged property under the Land Acquisition Act was paid to the mortgagor, the mortgages would have any right of action against the State. What happened in that case was thatacquisition was made before the mortgagee sued upon his security. He obtained a decree and established his mortgage to be good against his mortgagor. Though he recovered most of the mortgage amount, a portion of the costs in the action was still due to him and he sued the Secretary of State for India alleging that the Land Acquisition Officerhad notice of the mortgage and that notwithstanding such notice he had paid the money over to the mortgagor. It was held that when once money is paid over by the Crown to somebody else, the persons affected must take proceedings against that somebody else and that that is the only remedy conferred by the Act. This decision is in support of the view taken by the lower appellate court that no action could be maintained against the State.
5. It is urged on behalf of the appellant that if the suit as such is not maintainable, there is undoubtedly the remedy of the mortgagee-decreeholder to proceed by way of execution and that the trial court should have in the circumstances of the case converted the suit into an. execution petition in virtue of the powers which it possesses under Section 47(2) of the C.P.C. which provides,
'The court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding, and may, if necessary, order payment of any additional court fees.'
This power conferred upon the court is a necessary consequence of the limitation imposed by Section 47(1) of the Act, which lays down that all questions arising between the parties to the suit in which the decree was passed, relating to the execution, discharge or satisfaction of a decree shall be determined by the court executing the decree and not by a separate suit. There is ample authority in support of the position that the court in such circumstances is bound to apply Section 47(2) of the Act.
In Sudhir Kumar v. Chandrakantha, : AIR1955Cal560 , it was pointed out that after the amendment of Section 73 of the Transfer of Property Act, a claimfor payment of the mortgage money out of the surplus sale proceeds of a revenue or a rent sale no longer requires a suit for its enforcement. The principle is obviously applicable to a case where the mortgaged property has been acquired under the Land Acquisition Act.
The Supreme Court held in Guru Sidha Swami v. Dakshina Maharashtra Digambar Jain Sabha, : 1SCR235 , that where a suit would be barred under Section 47 C. P. C., the proper remedy of the plaintiff would be to apply for the execution of the decree in the previous suit. Their Lordships say: .
'This difficulty however is not insuperable, as under Section 47 C.P.C., the court is empowered to treat a suit as an execution proceeding when there is no question of limitation or jurisdiction standing in the way of the plaintiff.'
In Nabbo Bai v. Hasan Ghani AIR 1954 Mad 181, a Full Bench of the Madhya Bharat High Court held that where a final decree has been passed in a mortgage suit against a property originally mortgaged, the directions pertaining to the mortgaged property can appropriately be read as those pertaining to the substituted security by reason of Section 73(2) of the Transfer of Property Act. They further held that Section 47 is wide enough to allow this to be done by treating the application for execution as againstthe compensation money as a suit for a direction for realisation out of the same.
It seems clear, therefore, in the circumstances of the present case, the compensation money paid to the 2nd defendant, who was a party to the suit, on the mortgage,is available for being proceeded against by the mortgagee decreeholder. The form of action by which the decreeholder can reach this substituted security is however not by way of a separate suit but only by executing the final decree which he had obtained, and in this regard, the court is fully empowered by Section 47(2) C.P.C. to treat the suit as an execution petition, subject, no doubt, to questions of jurisdiction and limitation being canvassed.
6. The result accordingly is that the judgment anddecree of the lower appellate court have to be set aside.The trial court will have to take the suit back on its fileand proceed to deal with in the light of Section 47(2) of theAct. The second appeal is accordingly allowed, but in viewof the fact that the plaintiff has misconceived his remedy,there will be no order as to costs here or in the courtsbelow.