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Mahomed Afsaroodeen Vs. Bir Chunder Manikya - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal299
AppellantMahomed Afsaroodeen
RespondentBir Chunder Manikya
Cases ReferredGapi Nath Sing v. Sheo Sahay Singh B.L.R. Sup. Vol.
Excerpt:
mortgage - money decree--sale under mortgage decree--prior sale under money decree--suit for possession. - .....as he had not taken advantage of this opportunity, the plaintiff was entitled to succeed in the present suit. it appears to us that the case really depends upon the question whether the decree of the 30th december 1865 was a mortgage decree or not; and looking to the description of a mortgage decree given in the case of gapi nath sing v. sheo sahay singh b.l.r. sup. vol. 72 : 1 w.r. 315, we think the decree obtained by soorja kumari dabi against ram coomar bhuttacharji (mortgagor), was a mere money decree. upon the authority of the cases above referred to it is clear that the plaintiff, though he may have purchased the lien of the mortgagee, is not entitled to recover possession of the property, as against a person who was no party to that decree and is a bond fide purchaser for value.....
Judgment:

Tottenham, J.

1. The parties in this suit were purchasers at auction of the same property in execution of two separate decrees. The plaintiff's was the more recent purchase, it having taken place on the 1st July 1868. The defendant's purchase was on the 5th April 1867; but the plaintiff's case was that the decree in execution of which his purchase was made was a mortgage decree, the mortgage having been made and the decree upon it having been obtained previously to the purchase made by the defendant. The date of the mortgage was 21st April 1864, and the date of the decree upon the mortgage bond was 30th December 1865. On the other side, for the defendant, appellant, it is contended that the decree obtained in December 1865 upon the mortgage bond was not a mortgage decree, but a simple money decree, and this has been held by the lower Court. The District Judge, however, was of opinion that, notwithstanding this fact, the plaintiff was entitled to recover possession upon the authority of the Full Bench case of Haran Chunder Ghose v. Dino Bundhoo Bose 14 B.L.R. 408 : 23 W.R. 186 which established the principle that a mortgagee causing the sale of the mortgaged property conveys to the purchaser the entire interest in the property which he and the mortgagor could jointly sell, as well when the sale is under a decree for sale as when it is under a money decree. He held that the defendant in the present case could not claim to be a person not a party to that suit claiming interest in the property, because at the time, when the suit was tried and the decree given, the defendant had acquired no interest in the property, for his purchase took place in April 1867. It seems that in the execution proceedings under which the present plaintiff purchased, the defendant did come in as a claimant objecting to the attachment and sale upon the ground of his own previous purchase and possession. That claim was rejected, and the Judge observes that the defendant then had an opportunity of redeeming the property by paying off the mortgage money, but as he had not taken advantage of this opportunity, the plaintiff was entitled to succeed in the present suit. It appears to us that the case really depends upon the question whether the decree of the 30th December 1865 was a mortgage decree or not; and looking to the description of a mortgage decree given in the case of Gapi Nath Sing v. Sheo Sahay Singh B.L.R. Sup. Vol. 72 : 1 W.R. 315, we think the decree obtained by Soorja Kumari Dabi against Ram Coomar Bhuttacharji (mortgagor), was a mere money decree. Upon the authority of the cases above referred to it is clear that the plaintiff, though he may have purchased the lien of the mortgagee, is not entitled to recover possession of the property, as against a person who was no party to that decree and is a bond fide purchaser for value without bringing a suit to enforce the lien. The present suit, which is one for ejectment, is not one in which he is entitled to succeed. His remedy, if he has any, must be by a regular suit to enforce his lien under the mortgage. In the meantime we think the defendant was entitled to retain possession of the property. We accordingly reverse the decree of the lower Court, and direct that the suit be dismissed with costs of both Courts.


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