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The Allahabad Bank Limited Vs. Moti Lal Barman and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in35Ind.Cas.95
AppellantThe Allahabad Bank Limited
RespondentMoti Lal Barman and ors.
Excerpt:
civil procedure code (act v of 1908), order xxxiv, rule 10 - mortgage suit--account in preliminary decree, if adjusted once for all--money paid by mortgagee after preliminary decree either for rent or for supporting, his title to mortgaged property, if can be added to mortgage money. - .....rent was paid obviously to preserve the property. it is said that the landlord having obtained a rent-decree could only execute that decree in a particular way. whether that is so or not, it does not matter. i do not think that the mortgagee is not authorised to preserve the property from being lost for non-payment of rent. dr. mitter has cited no authority that the mortgagee is bound to leave the property in jeopardy until the court decides the matter one way or the other. i see no reason why we should lay down for the first time such a rule. i think the learned subordinate judge was manifestly wrong in not allowing the plaintiff the money which he has clearly paid for the purpose of preserving the property. i think the present appeal ought to be allowed and this amount of rs......
Judgment:

Fletcher, J.

1. This is an appeal from the decision of the learned Subordinate Judge of Howrah, dated the 10th August 1915. The appeal is preferred nominally against a decree absolute in a suit for sale brought to enforce a mortgage security. On the 25th February 1913, the first defendant along with the second defendant who is a surety for him executed in favour of the plaintiff-appellant, The Allahabad Bank Limited, a mortgage for Rs. 55,918-15-9. A suit was subsequently instituted by the Allahabad Bank and a preliminary decree was passed on the 10th September 1914. That preliminary decree found the sum of Rs. 67,990-0-9 as due to the plaintiff Bank and fixed a period of two months for redemption. The decree being made ex parte the defendant No. 1 applied to set it aside. That application was unsuccessful and the order was upheld by the High Court. Then on the 6th January 1915, there was an order relating to the payment by the plaintiff Bank of rents in arrears which the mortgagor did not pay. On the 28th January 1915 the plaintiff Bank applied to the learned Subordinate Judge for the appointment of a Receiver., That was refused and, upon appeal to the High Court, that order was set aside. On the 19th February 1915, the plaintiff Bank paid to the landlord--the property included in the mortgage being a leasehold property--the sum of Rs. 8,087-5-6 in respect of rent. Thereupon he applied to the learned Subordinate Judge for leave to add the money so paid to the amount due on the mortgage. But the learned Subordinate Judge on the 20th August 1915, refused that application on the ground that there was no express covenant in the mortgage-bond entitling the plaintiff to add such arrears to the amount due on his mortgage. In substance, the appeal is preferred against the order.

2. Under Order XXXIV, Rule 2, Code of Civil Procedure, in a suit either for foreclosure or sale when the plaintiff succeeds the Court has either to direct an account to be taken; of what is due to the plaintiff for principal and interest upon the mortgage security and for the costs of the suit or to find the sum due. But as a matter of practice the latter course is followed in the Courts in moffussil. The learned Judge in this case having by his judgment decided that the plaintiff is entitled to succeed proceeds to calculate the amount due upon his mortgage and instead of directing an account to betaken, he inserts in the preliminary decree the actual amount which the defendant is liable to pay. That, of course, is a method which has certain advantages.

3. That the account is not adjusted once for all appears quite clear from the other, rules of the Order. For instance, Order XXXIV, Rule 10, mentions the final adjustment of the amount. So, the amount may from time to time vary. The present application is to add this money that was spent for the preservation of the property to the amount due on the mortgage. The mortgage is a mortgage of a leasehold property. The mortgagor was bound by the terms of the law to pay the rent becoming due under the lease and it has always been held that money so paid by the mortgagee can be added to the amount due on the mortgage. That is the view expressed by Sir Rash Behary Ghose in his treatise on the Law of Mortgage in British India and it may also be found in any text book on the subject. The same view has been supported in many decisions of this Court and I am not satisfied that Dr. Mitter's view that the cases in the Madras and the Bombay High Courts really cast a doubt upon that view at all is tenable. There cannot be, I think, any doubt that in the account the mortgagee can claim money properly paid by him for either supporting or defending the title to the mortgaged property. Money paid for rent has always been held to be part of the mortgage-money. It seems to me that, in substance, that is what the plaintiff has been asking for in this case, namely, to be allowed to add the money that he has paid to the landlord for rent in respect of the mortgaged property. If that is so, that money is a portion of the money secured by the mortgage. That being so, of course, the question that Dr. Mitter has raised about the final decree to a foreclosure suit being really a matter in execution cannot possibly arise.

4. The next point is a question of fact, namely, whether this money was, in fact, paid for the preservation of the property. The rent was paid obviously to preserve the property. It is said that the landlord having obtained a rent-decree could only execute that decree in a particular way. Whether that is so or not, it does not matter. I do not think that the mortgagee is not authorised to preserve the property from being lost for non-payment of rent. Dr. Mitter has cited no authority that the mortgagee is bound to leave the property in jeopardy until the Court decides the matter one way or the other. I see no reason why we should lay down for the first time such a rule. I think the learned Subordinate Judge was manifestly wrong in not allowing the plaintiff the money which he has clearly paid for the purpose of preserving the property. I think the present appeal ought to be allowed and this amount of Rs. 8,087-5-6, which has been paid by the plaintiff mortgagee for the rent of the property, ought to be added to and form a part of the money found due on the mortgage, That being so, the present appeal must be allowed. The defendant No. 1 respondent must pay to the plaintiff-appellant his costs in this Court and in the lower Court incurred in the application. These costs will be added to the mortgage security. The period of redemption is also extended to three weeks from this date.

Teunon, J.

5. I agree.


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