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Moheswari Pershad NaraIn Singh and anr. Vs. Baij Nath Pershad NaraIn Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1887)ILR14Cal451
AppellantMoheswari Pershad NaraIn Singh and anr.
RespondentBaij Nath Pershad NaraIn Singh and anr.
Cases ReferredBhobo Sundari Debi v. Rakhal Chunder Bose
Excerpt:
mortgage - foreclosure--regulation xvii of 1866, section 8--provision as to the year of grace--extension of time by mutual agreement--transfer of property act, section 2, clause (c). - .....expired while the regulation was in full force, and before the passing, of the transfer of property article. this suit was then brought by the mortgage claiming to have his title declared to have accrued to him absolutely by reason of default in payment within the time to which the period of grace had been extended, and asking for a decree such as he would have had if the regulation had been still in force. the lower court gave the plaintiff a decree accordingly, and against that decree the present appeal has been brought.2. two objections have been urged before us. first, it has been said that the title which the mortgagee acquires under the regulation is a. statutory title, and that in order to perfect that title everything must be carried out in strict accordance with the.....
Judgment:

1. This was a suit brought upon a mortgage made in the old form by conditional sale. The time for paying the mortgage money expired, and the notice prescribed by Section 8 of Regulation XVII of 1806 was issued and served. The consequence was that the mortgagor's interest in the property became liable to be barred, and the mortgagees' title was in process of becoming absolute if the money was not paid within the year of grace prescribed by the Statute. Before the year of grace had expired, the period for payment was enlarged by agreement between the parties, and several further extensions of time took place. Ultimately the final extension expired while the Regulation was in full force, and before the passing, of the Transfer of Property Article. This suit was then brought by the mortgage claiming to have his title declared to have accrued to him absolutely by reason of default in payment within the time to which the period of grace had been extended, and asking for a decree such as he would have had if the Regulation had been still in force. The lower Court gave the plaintiff a decree accordingly, and against that decree the present appeal has been brought.

2. Two objections have been urged before us. First, it has been said that the title which the mortgagee acquires under the Regulation is a. statutory title, and that in order to perfect that title everything must be carried out in strict accordance with the Regulation; and, therefore, it is said, because there was an extension of time beyond the statutory year of grace, if the mortgagee intended to rely on such a title as he could acquire under the Regulation, he was bound to begin de novo with a new notice under the Regulation. It appears to us that that is not so. The character of the arrangement for the extension of time appears from the petitions printed at pp. 52, 54 and 55 of the Paper Book. These are petitions which show that the extended period bad been conceded by the mortgagee ; that the extensions were accepted by the mortgagor and they close with words to this effect: 'In the event of your petitioner not paying the consideration money with interest and costs ' (by such and such a date) 'the equity of redemption, in respect to the property sold, shall be barred in favour of the purchasers.' In other words they are petitions which show that the extension of time was obtained by the mortgagor on the express terms that the bar to his title in case of nonpayment should be as effectual as if the time had not been extended. That is a matter of procedure as to which the parties were at liberty to make such agreement as they thought fit. It appears to us analogous to the case of a man whose property is liable to be sold under an attachment, and who obtains a postponement of the sale on the terms that no fresh sale proclamation shall be necessary, a very common form of agreement and one to which the Courts have often given effect. It appears to us, therefore, that the objection based upon the extension of time is not a sound one. The subject has been considered in some of the decided cases. In Brijo Mohun Suttyputty v. Radha Mohun Dey 20 W.R. 176, a similar question came before Sir Richard Couch, C.J. and Glover, J., and they held that the right of the mortgagee was not affected by his having given time; but, as pointed out by the Advocate-General, that case is not expressly in point because it would seem that in that case, before the extended time was given, the year of grace had expired, which is not the case here. Then there are two cases in which the point has arisen, but in which it was the mortgagor who was compelled to rely upon the extended time. There is one case Dabee Rawoot v. Heeramun Mohatoon 8 W.R. 223, decided by Sir Barnes Peacock, C.J. and Loch, J., in which they held that the period of time having been enlarged by consent, the mortgagor was safe in paying his money into Court within the enlarged time. A similar decision was passed in Zalem Roy v. Deb Shahee March 167, decided by Bayley and Kemp, JJ. These cases tend to show that it is within the power of the parties to . bargain as they choose in the way of enlargement of time in cases under the Regulation, and that such extension of time is not fatal to the whole proceeding.

3. The next question is one of more general importance. It was contended that in this case the suit, having been brought after the passing of the Transfer of Property Article, was governed by that Article, and that the form of the decree to be given in the case ought to be the form of foreclosure decree prescribed by that Article, in Sections 86 and 87. Several cases were referred to in support of that contention. The first of these in point of date is Ganga Sahai v. Kishen Sahai 6 A. 262. In that case the mortgage was of the kind governed by Regulation XVII of 1806, and it was executed while that Regulation was in force. Subsequently to the passing of the Transfer of Property Article, a suit of the nature prescribed by that Article was brought without any previous proceedings having been taken under the Regulation, and the question before the Full Bench of the Allahabad Court was whether such a suit would lie. The majority of the Judges held that the suit lay; that the proceedings prescribed in the Regulation were matter of procedure, and not within the saving clause of the repealing section in the Transfer of Property Act, not falling within the words, 'right or liability arising out of a legal relation constituted before this Article comes into force, or any relief in respect of any such right or liability.' The next case was one in this Court, Pergash Koer v. Mahabir Pershad Narain Singh 11 C. 582. There the mortgage was again a mortgage governed by the Regulation, and executed while the Regulation was in force. Proceedings taken under the Regulation would have resulted, if these proceedings had been good as against all parties, in the acquisition of a complete title by the mortgagee. The suit was then brought after the passing of the Transfer of Property Article. It was found, however, on the trial of the case, that as against the defendant who was sued in the case, the proceedings purporting to be under the Regulation were invalid because he had not been made a party, and, accordingly, the first Court dismissed the suit. The question before the appellate Court was whether in that state of things the plaintiff was not nevertheless entitled to a decree in accordance with the provisions of the Transfer of Property Article. There, as in the Allahabad case, the Judges of this Court were dealing with a ease in which no valid and effectual proceedings had taken place as between the parties to the suit under the Regulation; and it was held that the procedure under the Transfer of Property Article ought to be applied, and a decree in accordance with that Article granted, subject to this, that a year of grace was given to redeem instead of the different period contemplated by the Transfer of Property Article. The third case is a decision of a Full Bench of this Court, Bhobo Sundari Debi v. Rakhal Chunder Bose 12 C. 583. There again the mortgage was made under the Regulation. No proceedings had been taken under the Regulation, but after the passing of the Transfer of Property Act a suit was brought. The question which the Full Bench had to consider was, whether such a suit would lie, that is to say, whether in the case of a mortgage, governed at the time of its making by the Regulation, the mortgagee may sue in the manner provided by the Transfer of Property Article; or whether, notwithstanding the passing of the Transfer of Property Article, which repealed the Regulation, the mortgagee was, by virtue of the saving clause, compelled to proceed under the Regulation as if the Transfer of Property Act had not been passed. The Court held that he was not, the matter being one of procedure.

4. All these cases differ materially from the present for this reason. In the present case, before the Transfer of Property Act passed, proceedings had been taken under the Regulation. They were valid and effectual proceedings, and they had arrived at a close ; that is to say, the period of grace had expired. Now, when that period of grace expired, the Regulation being still in force, what were the rights of the parties? The mortgagee acquired an immediate right to have a decree declaring the property to be his absolutely. It did not become his absolutely without a decree, but his right to such a decree immediately accrued. On the other band the mortgagor, the moment the period of grace expired, ceased to have any right of redemption. These rights and liabilities appear to us to differ essentially from the matters, which, in the other cases, were held to be mere matters of procedure. It is impossible to say, in our judgment that anything can be described as a 'right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability,' if these words do not apply to an actually existing right to an immediate decree declaring the property to be absolutely the property of the mortgagee, and, on the other hand, the entire lose of any right to redeem the property.

5. We think, therefore, that the second ground of appeal fails as well as the first, and this appeal must be dismissed with costs.


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