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Kalipada Mukerji Vs. Basanta Kumar Dutta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1932Cal126,138Ind.Cas.177
AppellantKalipada Mukerji
RespondentBasanta Kumar Dutta and ors.
Cases ReferredKhairamal v. Daim
Excerpt:
civil procedure code (act v of 1908), sections 47, 148, order xxi, rules 89, 92, order xxxiv, rule 5 - suit for declaration of right to redeem in spite of confirmation of sale--injunction restraining purchaser from taking delivery--if barred--mortgage--suit for sale by mortgagee--'parties', meaning of--time to pay balance of purchase money--extension of--power of court--consent of judgment-debtor--waiver--purchase by puisne mortgagee--effect--transfer of property act (iv of 1882), section 74--whether limits rights of puisne mortgagee. - mukerji, j.1. the facts which have led up to these two appeals are the following: in a suit for sale instituted by certain persons as the first mortgagees, who 'for the sake of brevity may be called the rai chaudhuris holding a mortgage from the appellant kali podo mukherji in which they had impleaded as defendants the said appellant as the mortgagor as well as one abinash chandra dutt as the puisne mortgagee a final decree for sale was passed in accordance with the provisions of order 34, rule 5. civil p.c. on 31st may 1927. the decree was in these words:it is ordered that the immovable properties mentioned in the said decree and specified at the foot thereof or so much thereof as may be necessary be sold by public auction and that the money which may be realized by such sale (after.....
Judgment:

Mukerji, J.

1. The facts which have led up to these two appeals are the following: In a suit for sale instituted by certain persons as the first mortgagees, who 'for the sake of brevity may be called the Rai Chaudhuris holding a mortgage from the appellant Kali Podo Mukherji in which they had impleaded as defendants the said appellant as the mortgagor as well as one Abinash Chandra Dutt as the puisne mortgagee a final decree for sale was passed in accordance with the provisions of Order 34, Rule 5. Civil P.C. on 31st May 1927. The decree was in these words:

It is ordered that the immovable properties mentioned in the said decree and specified at the foot thereof or so much thereof as may be necessary be sold by public auction and that the money which may be realized by such sale (after defraying thereout the expenses of sale) be paid into Court to the credit of this suit and that the sum of Rs. 54,301-5-6 payable under the said preliminary decree together with Re- 1-12-3 the costs of the application for final decree and further interest from '29th May 1927 up to the date of payment at the rate of 6 per cent per annum specified in the said decree be paid to the plaintiffs and that the claim of the second mortgagee (defendant 2) will be realized from the balance of the sale-proceeds if any after satisfaction of the due3 of the plaintiff (first mortgage) and that the balance if any be paid to the defendant 1 (the mortgagor.)

2. The sale was held on 22nd May 1923. One Basanta Kumar Dutt, brother of Abinash Chandra Dutt, purchased the properties for Rs. 58,500 and deposited Rs. 15,000 as required by Order 21, Rule 84, Civil P.C. The balance of the purchase money as required by Order 21, Rule 85 was not paid within 15 days, i. e., 5th June 1928 but on 5th June 1928 a petition was filed by the purchaser for extension of time for the payment and as it bore the consent of the mortgagor judgment-debtor Kali Podo Mukherji, no action under Rule 86 was taken by the Court and no resale was ordered but the purchaser was allowed extension of time by ten days. Within that time on 15th June 1928, the balance of the purchase money Rs. 43,500 was deposited. Eventually the sale was confirmed, sale certificate being issued in the name of Basanta Kumar Dutt. When possession was about to be taken by the auction-purchaser, objection was preferred by Kali Podo Mukherji on 27tb April 1929. This objection to delivery of possession was dismissed by the Subordinate Judge on 11th June 1929. From this order Kali Podo Mukherji preferred Miscellaneous Appeal No. 329 of 1929 on 21st June 1929.

3. On 5th July 1929, Kali Podo Mukherji instituted a title suit against Basanta as defendant 1, Abinash as defendant 2, and the Roy Chaudhuris as pro forma defendants 3 to 5. He challenged the petition of 5th June 1928 as fraudulent and denied that he had consented to the extension of time that Basanta had obtained. He alleged that the real purchaser was Abinash. He put down his cause of action in the plaint in these words:

The cause of action for the suit arose * * * on 2'2nd May 1928, i. e., the date of auction-sale and subsequently on 20th April 1929 when the matter contained in the fraudulent petition dated 5th June 1928 filed by defendants 1 and 2 was known to the plaintiffs.

4. The substance of the reliefs asked for in the suit were; first: a declaration that the plaintiff has the right of equity of redemption in the properties in suit and that the said right was not affected by the auction sale and also a declaration that the defendants are trustees in the said properties; second ,a declaration that the auction-sale was illegal, inoperative and not binding on the properties in suit; third, an injunction restraining the defendants from taking possession under the said auction purchase and other incidental or consequential reliefs not necessary to be specifically mentioned.

5. The defence was an assertion that Kali Podo Mukherji had signified his consent to the extension of time that the sale was valid, operative and binding and that Basanta himself and not Abinash was the real purchaser Abina3h having advanced some money to his brother Basanta and having subsequently bean paid off by the latter. It was denied that any of the legal position alleged on behalf of the plaintiff had arisen. It was claimed that Basanta was entitled to possession under his purchase.

6. The Subordinate Judge has dismissed the suit and from his decree First Appeal No 214 of 1930 has been preferred by Kali Podo Mukherji.

7. There can be no question as regards the competency of the first appeal but the competency of the Miscellaneous appeal may be disputed unless the order from which it has been taken may be regarded as one falling within Section 47 of the Code. The question however is of purely academic interest, because, unless both the appeals are incompetent, which is not the case here, the merits of the case will necessarily have to be gone into. The question whether the order of 11th June 1929 is one falling within Section 47 of the Code arises in another connexion, namely, whether the suit in so far as it covers the same field as the objection to delivery of possession, was maintainable and we shall presently express our opinion on it in that connexion.

8. Before the Subordinate Judge it was contended that the suit was barred by reason of Section 47 of the Code, as well as of the provisions of Order 21, Rule 92, Sub-rule (3). He held that Order 21, Rule 92, Sub-rule (3), would afford no bar as there was no application under Order 21, Rule 90, but that the suit was barred because of Section 47. It may be stated in passing that the interpretation which the Subordinate Judge has given to Sub-rule (3), Order 21, Rule 92, is erroneous because the sub-Rule bars a suit for setting aside an order by which a sale is set aside under Sub-rule (2) or an order confirming a sale under Sub-rule (1) irrespective of the question whether an 'application for setting the sale aside has been made or not. But Sub-rule (3) has no operation here because what has been prayed for in the suit is not the setting aside of the order confirming the sale, but certain declarations, the nature of' which has already been set out and also an injunction as regards the taking of possession both of which are matters with which the sub-rule has no concern. The real question is whether Section 47 stands in the plaintiff's way. As regards the declarations, they are clearly outside the purview of Section 47 and a prayer therefore is not barred by that section. The real question to be considered is as regards the appellant's objection to delivery of possession and his prayer for an injunction restraining such delivery. Here again, the question has to be considered upon the ca3e which the appellant seeks to present and not upon what his opponents may say or have succeeded in establishing against it.

9. The appellant's case is that Basanta is but a benamidar for Abinash and that Abinash is the real auction-purchaser. His objection to delivery of possession will, on the principle of the Full Bench decision of this Court in the case of Kailas Chandra v. Gopal Chandra A.I.R. 1926 Cal. 799 fall within Section 47 of the Code, if the dispute between Abinash and the appellant was a question ' arising between the par-ties to the suit' within the meaning of that section. It has been urged on appellants' behalf that the words 'parties to the suit' in Section 47, Sub-section (1), mean parties arrayed in opposition to each other, and that the appellant and Abinash having bean both defendants in the suit, they do not satisfy the requirements of these words. On behalf of the respondents it has bean contended that Abinash, by reason of the fact that he was a puisne mortgagee in whose favour an order for payment in case of the sale fetching a surplus had bean made in the decree, was in the position of a decree-holder; the decree being read as a combination of two decrees, one in favour of the Roy Chaudhuris and the other in favour of Abinash. Now, it has bean held that 'parties' mean parties who are opposed to each other in the suit, though not necessarily as plaintiff and defendant, and that the nature of the suit and the contentions between the parties ought to be considered and that if their rights conflict the question is one within the meaning of Section 47: Mangaya v. Sriramalu [1913] 19 I.C. 448. As regards a mortgage suit for sale, the rights of the second mortgagee are vary limited: he has the right to redeem the prior mortgage or to receive his mortgage money out of the surplus sale proceeds after satisfaction of the prior mortgage treating the suit any one for his benefit; but he cannot ask for a sale of the property if the prior mortgagee's claim is satisfied before the sale, nor can he ask for sale of some other property included in his own mortgage and for either of these purposes he must bring a separate suit for sale on his own mortgage. Sarat Chandra v. Nahapiet [1910] 37 Cal. 907 and Vidavyasa v. Madura Hindu Labha Nidhi Co. [1919] 42 Mad. 90. From these decisions it would appear that whatever may be the English practice and the practice on the Original side of this Court, the procedure in the mufassil is different and, as held in effect in the case of Mackintosh v. Watkins [1905) 1 C. L.J. 31 the second mortgagee is merely made a party to the suit in order that he might have an opportunity of redeeming if ha wished and in order that he might have his mortgage money, or part of it, out of the surplus sale proceeds after satisfaction of the first mortgage, but that the decree is not really a decree in his favour, and that he could not insist upon a sale nor get a personal decree in his favour if the first mortgage was satisfied before or by means of the sale.

10. Notwithstanding this limited right which ha had it is rather difficult to hold that Abinash was a party not opposed, for certain purposes, to the mortgagor against whom he was entitled to and was, in fact, given some relief. In the case of Gopi Narain Khanna v. Babu Bangsidhar [1905] 27 All. 325, the Judicial Committee held that a second mortgagee who is a party to a suit by the first mortgagee for foreclosure, and who satisfies the decree made therein and thus prevents foreclosure, acquires under Section 74, T. P. Act, all the rights and powers of the first mortgagee; but he is not entitled to work out under Section 244, Civil P. C, his rights, as owner of the first mortgage and as second mortgagee, as against other encumbrancers who are parties to the suit and that as soon as the money due under the foreclosure decree has been paid it is discharged and satisfied, and there is nothing to be done in the execution department. There of course it was a question of enforcing rights which had not been adjudicated upon in the suit itself, and ware not covered by the decree. On the other hand, as regards rights enforceable under the decree itself, it has been held that a puisne mortgagee who pays off a decree on a prior mortgage can enforce his rights only by process of execution and not by suit: Bavanna v. Balagorivi [1899] 9 M. L.J. 177. In our opinion therefore the question that was decided by the Subordinate Judge on the appellant's objection as to delivery of possession was a question falling within the purview of Section 47, Civil P.C. Such an interpretation of the expression 'arising between the parties to the suit' would be more in consonance with the wide construction which their Lordships of the Judicial Committee approved of in the case of Prosonna Kumar v. Kalidas [1892] 19 Cal. 683;

It is of the utmost importance that all objections to execution should be disposed of as cheaply and speedily as possible. Their Lordships are glad to find that the Courts in India have not placed any narrow construction on the language of Section 244.

11. We are therefore of opinion that the appellant was not competent to ventilate this objection in a separate suit. This however does not relieve us of the necessity of considering the merits of the objection for though we may ignore it so far as the first appeal is concerned, we have to examine it in the miscellaneous appeal,

12. To deal with the questions that have arisen on the merits, two questions of fact which are involved in the case may with convenience be disposed of first. The first is: did the appellant give his consent to the extension of time which Basanta applied for by his petition of 5th June 1927 and obtained The finding of the Subordinate Judge on this question is in the affirmative. The appellant no longer challenges this finding, and rightly enough because the materials in support of it are overwhelming. We cannot however overlook the fact that with the abandonment of this allegation the corner-stone of the appellant's case is removed. The other question is, weather Abinash and not Basanta was the real auction-purchaser The Subordinate Judge was of opinion:

that there is no satisfactory evidence to show that defendant 1 is the benamidar of defendant 2, that if the application supported by affidavit, which defendant 1 filed be taken as disclosing the true state of things, defendant 'A does not become the benamidar of defendant 1, but only a co-purchaser with him.

13. He ultimately recorded his finding thus:

I am moreover satisfied from the evidence adduced that defendant 2 merely helped his brother, defendant 1, with some money for the purchase of the property but did not himself become one of the auction-purchasers.

14. We have carefully examined the evidence. There is evidence to show that Abinash took a far more active part in the matter of the purchase and for its confirmation than Basanta, and on the other hand there is evidence that Basanta has paid off the amount which Abinash had advanced to him for the purchase. What the real position is, it is vary difficult to say: it is clear however that the admission of Basanta in his petition supported by an affidavit, that he had made the purchase for himself and his brother Abinash, has not been explained, and so must be taken as good evidence for the purposes of the present case. In this petition Basanta went the length of praying, adversely to his own interest, that the sale certificate should issue in their joint names. In these circumstances, while it must be conceded that it has not been established that Abinash alone was the real purchaser and Basanta his benamidar, it is reasonable to proceed on Basanta's admission that both the brothers were joint purchasers. That is the footing on which the questions arising in the case will have to be decided.

15. The first question now is what was the effect of the sale when, by consent, the balance of the purchase money was [received on a date to which the period provided for by Order 21, Rule 85, was extended, and when the procedure prescribed in default of such payment was not followed and no resale was hold as required by Order 21, Rules 86 and 87. It is true that Section 148 of the Code would not 'authorize the Court to enlarge the period because the period is fixed by the statute and is not fixed or granted by the Court. But the effect of the consent, in our 'opinion, is to waive the irregularity in the procedure, and the proper view in our judgment to take of the transaction is to hold that the old sale was equivalent to a resile. To the same effect is the decision of the Madras High Court in the case of Subramaniyam Nambudri v. Kammathi A.I.R. 1923 Mad. 48 and of the Punjab High Court in the case of Radha Kishan v. Hari Singh A.I.R. 1927 Lah. 337. Such a sale, in our view, is not a nullity nor held without] jurisdiction, and has not the effect of a private sale but is to be regarded as a Court sale with the deviation from the normal procedure condoned by the consenting party and as bringing on all the statutory consequences which will follow on a sale regularly held by the Court in strict accordance with the provisions of the Statute.

16. The effect of failure on the part of the auction-purchaser to put in the initial deposit under Order 21, Rule 84, that is to say, whether it makes a sale void or voidable on which point Bhim Singh v. Sir-wan Singh [1889] 16 Cal. 33 Venkata v. Sama [1891] 11 Mad. 227 Sitaram v. Janki Ram A.I.R. 1922 All. 200 and other cases have been cited does not fall for consideration in the present case. Nor is the case of Munshi Mahommad Ali v. Kibria Khatun [1911] 9 I.C. 66 in which it has been held that if the sale is confirmed though the balance of the purchase money has not been put in it amounts to a, nullity, of assistance to the appellant. A passage from Jones on Mortgages, Edn. 6, para. 1678, has also been cited. It runs thus:

When a foreclosure sale is invalid by reason that in making it the requirements of the Statute have not been followed the purchaser is subrogated to the rights of the mortgagee. When the proper parties to the suit are omitted, and therefore are not bound by it, or there is other irregularity in the proceedings, the sale operates as a voluntary assignment of the mortgagee of his interest to the purchaser. This is true of sales and powers of sale, as well as under decrees of Court .... The purchaser's title under an invalid sale is good against all except the mortgagor and those claiming under them.

17. The passage in question as far as we can gather must have reference to fundamental irregularities, ejusdem generis, with the irregularity as to omission of necessary parties which is specifically mentioned and such as are antecedent to the sale. But then it has been argued that here also it should be held that the sale was not complete and that the irregularity in the shape of extension of time for deposit of the balance of the purchase money should be regarded as irregularity in proceedings antecedent to the sale. To this it may be said in answer that the sale had in the language of the Code, already taken place and what had to take place on failure of the purchaser to comply with Order 21, Rule 86, in the language of the Code, was a resale: vide Order 21, Rule 87: see also Jaibahadar Jha v. Matukdhari Jha A.I.R. 1923 Pat. 525. As another answer on the question whether delivery of possession may be resisted, it may be pointed out that in Jones on Mortgage (Ban. 7, para. 1678) the following addition has been made:

If the mortgagee purchases at an ineffectual sale and enters into possession ho simply becomes a mortgagee in possession; and if be sells the laud to another: and there are successive sales the conveyances operate as assignments of the mortgage to the successive parties in the several deeds. Anyone who takes possession under a valid mortgage is entitled to the rights of the mortgagee in possession. A title acquired by a purchaser through void foreclosure proceedings under a valid mortgage cannot be assailed by the mortgagor or any person claiming under him, unless the amount of the decree and interest is tendered.

18. An invalid sale is equivalent to an assignment, but no authority has been shown to us which has ever held that when that takes place as a result of proceedings taken in Court the purchaser is not entitled to obtain possession.

19. The next question that has been argued is, what passed at the sale, seeing that it was a sale held in pursuance of Order 34, Civil P.C., and not under the Transfer of Property Act. In other words, it has been contended on behalf of the appellant that notwithstanding the sale, the right of redemption still remained in him. Now let us examine this question, treating the purchaser as a stranger. The suit, it must be remembered, was one properly constituted in which all persons having interest in the property comprised in the mortgage were parties. Cases discussed at the Bar, which deal with the right of a purchaser to possession at a sale held in a suit imperfectly constituted cases which are noticed in Krishto Pada Roy v. Chaitanya Charan Mondal A.I.R. 1923 Cal. 274 to many of which our attention has been drawn and later decisions e.g., Kalu Sharif v. Abhoy Charan A.I.R. 1921 Cal. 157 Bhagaban v. Tarak : AIR1927Cal259 and Bhodai Sheikh v. Baroda Kanta Dutt : AIR1928Cal116 have no relevancy in the present case. As regards the rights of a purchaser at a sale under such a decree made under the provision of the Transfer of Property Act in a suit properly constituted, as pointed out in the case of Digambar Suthar v. Suajan : AIR1929Cal233 :

Two views fundamentally different may be taken; he may be regarded as having acquired the equity of redemption as it stood at the date of the mortgage together with the lion of the mortgage; or ho may be looked upon as having acquired the property as it was at the date of the sale, that is to say, that property discharged of the mortgage lien.

20. Whichever view be taken we do not, think it has over been disputed that in a case in which there was no defect in the constitution of the suit and to which the Transfer of Property Act applied, the sale would entirely cut off the equity of! redemption, and that the whole property] including the interest of the mortgagees and of the mortgagor would pass to the purchaser. The Judicial Committee, in the case of Het Ram v. Shadi Ram A.I.R. 1015 P.C. 31 observed as fellows:

Under Section 85 the first mortgagee was bound to make the second mortgagee a party to his suit for sale, and as he did not do so the second mortgagee was not bound by the order for sale which could only have boon operative subject to his title. Section 89 is important. Under this section where an order for sale under Section 88 has been made such as was made here in 1892 in favour of the first-mortgagee, the mortgagor or the second mortgagee, if he had been a defendant, would have had the right to redeem if he had paid on the date fixed by the decree the amount due. If such payment is not made, a decree absolute may be made as was made in 1895, for sale and for payment of the amount realized into Court. 'The section then provides that 'defendant's right to redeem and the security shall both be extinguished. The construction which their Lordships put on the language so used is that on the making of the order absolute the security as well as the defendant's right to redeem are both extinguished, and that for the right of the mortgagee under his security there is substituted the right to a sale conferred by the decree.

See also Matruml v. Durga Kumar A.I.R. 1920 P.C. 79.

21. The recent amendment of the rules under Order 34 need not be considered because the decree and the sale in the present case took place before those amendments. The question arises whether by reason of the omission of the concluding words of Section 89, T. P. Act. 'and thereupon the defendant's right to redeem and the security shall both be extinguished,' from the provisions of Order 34, Rule 5 when it was enacted under the Civil Procedure Code, 1908, the right to redeem remained in the mortgagor even after the sale. On be-half of the appellant it has been con-tended that it so did. As regards cases under O.34 it has been hold, though without specifically dealing with the effect of the omission of these words, that a sale under the decree obtained by the first mortgagee conveys the interest of the mortgagor and mortgagee as they were at the data of the first mortgage: Barendra v. Martin & Co. =62 I. Order 167.. Our attention has been drawn to a case, Muhammad Musa v. Edal Singh A.I.R. 1922 Pat. 02 in which Das, J. of the Patna High Court was inclined to hold that the right remained in the mortgagor after the sale and for long afterwards. In the ease of Sukhi v. Ghulam Safdar A.I.R. 1922 P.C. 11 their Lordships of the Judicial Committee observed thus:

In these rules the words above quoted are omitted in the rule winch corresponds to 8, 89. . . . Now the words being gone their Lordships feel no difficulty in holding that the law remains as it certainly was before the Transfer of Property Act. 1882, namely, that an owner of a property who is in the rights of a first mortgagee and of the original mortgagor as acquired at a sale under the first mortgage is entitled at the suit of a subsequent mortgagee, who is not bound by the sale or the decree on which it proceeded, to set up the first mortgage as a shield.

22. From these observations it seems to us clear that in a sale held under an order absolute under Order 34, Rule 5, the purchaser acquires the right of the. mortgagee and also of the mortgagor, that is to say, the latter's right of redemption. It is true that under Order 21, Rule 89 the mortgagor judgment-debtor is entitled to stop the sale by payment of the amount due and coats, and further he can, if the property is sold, have the sale set aside on making the deposit as proved by Order 21, Rule 89, or by making payment at any time before the confirmation of the sale under Order 34, Rule 5, Sub-rule (1), though Order 21, Rule 83, Sub-section (3), disentitles him to a postponement of the sale for raising the decretal amount. But these are rights which the Civil Procedure Code gives a mortgagor judgment-debtor and are not to be confessed with the right of redemption, which is an equity in favour of the mortgagor. The statutory enactment contained in Section 60. T. P. Act, which must be taken as defining the right of the mortgagor to re-deem, so far as this country is concerned, expressly says:

Provided that the right conferred by this section has not been extinguished by act of the parties or by order of a Court.

23. In any case, there is no foundation for the view that under the sale in the present case, treating the auction-purchaser Basanta as a stranger, the right of redemption remained in the appellant after the sale, or in any event after the confirmation thereof. >

24. The next question is: What should be the position when the purchaser is not a stranger but a puisne mortgagee The right of a puisne mortgagee to pay off a prior mortgagee is dealt with by Section 74, T. P. Act, as it stood before the recent amendments. Where a puisne mortgagee pays off the prior mortgagee, he upon redemption of the prior mortgage, acquired under Section 74:

all the rights and powers of the mortgagee as such to whom he has made such tender: sea also Syed Mahomed Ibrahim v. Ambika Prosad Singh [1912] 39 Cal. 527.

25. As pointed out in the Pull Bench decision of this Court in the case of Umar Ali v. Asmat Ali : AIR1931Cal251 this right which Section 74 confers is 'in effect the right of subrogation,' but that prior to the recant amendment, the Transfer of Property Act did not employ the word subrogation. It has also been observed in the case of Aziz Ahmad v. Chhote Lal : AIR1928All241 :

It will be important to note that the word 'subrogation' is not to be found within the four corners of the Transfer of Property Act. The word 'subrogation' moans 'substitution.' The rule of substitution has boon adopted and applied by Courts of equity on the principle: 'He who seeks equity must do equity.' If a certain party is owning property and his property is relieved from a certain liability it is the duty of the owner to see that the party who relieves is not allowed to suffer, this is the principle of: subrogation, and also the doctrine of subrogation has been applied for the benefit of a party making the payment in suitable cases and cannot be applied to the disadvantage of that party.

26. Assuming that even after the sale in pursuance of the decree the security was in force, and assuming that Abinash and Basanta were joint purchasers, as we have held for the purpose of this case they were, or even assuming that Abinash alone was the purchaser, they or he would be surrogated to the position of the prior mortgagees and would be corn-potent to stand in the shoes of the latter, and to enforce, if so minded, the rights which the latter possessed in respect of the security. That does not mean that the right of redemption on the part of the mortgagor judgment-debtor still remained in him or that even after the sale which has been confirmed he would be competent to enforce it as against the purchaser or purchasers at the sale. And even assuming that the mortgagor judgment-debtor still possesses that right, it is inconceivable how he can contend that the purchaser or purchasers at the sale should not got delivery of possession. Shephard, J., in Perianna v. Narudan Filial [1899] 22 Mad, 332 at p. 336, observed that the language of Section 74 makes it clear that the second mortgagee is, by the tender of the mortgage money to acquire no other right than that possessed by the mortgagee.

27. But, where, as hero, the second mortgagee purchases at a sale held in pursuance of a decree passed in a mortgage suit properly constituted, there is no reason to suppose that his rights are to be regulated by Section 74 or are confined to that section only. As regards the competency of a mortgagee to purchase the equity of redemption at a private sale is, generally speaking, correct to say that once a mortgage transaction is entered into, it is not within the competency of the parties to clog the equity of redemption, that any stipulation which letters the equity of redemption is invalid as opposed to Section 60, T. P. Act, and that any agreement in restraint of the right of redemption which is oppressive or unreasonable as giving the mortgagee an advantage not belonging to the contract of mortgage is not enforceable. At the same time there is authority for the proposition that there is nothing in law to prevent the parties to a mortgage from coming to a subsequent arrangement qualifying the right to redeem: see Sankar Din v. Gokul Prosad [1912] 31 All. 620 and that it is competent to the mortgagee and the mortgagor to enter into a contract subsequent to the mortgage for the sale of the mortgaged property to the mortgagee: Kanhaya Lal v. Narhar [19031 27 Bom. 297. For this last mentioned proposition there is also very high authority: Reeve v. Lisle [1902] A. C. 461. So far as the competency of a mortgagee to purchase at a Court sale is concerned it would ho sufficient to say that the extreme contention that he is incompetent to make a purchase at all was overruled by the Judicial Committee in the case of Khairamal v. Daim [1905] 32 Cal. 296 in these words:

But the Judge has made a decree for redemption of the whole estate on the ground that the mortgagees could not acquire the equity of redemption directly or indirectly at a Court-sale except by a suit brought on the mortgage, on account taken and time specially allowed for redemption. Their Lordships cannot concur in this view which is based upon a misapplication of a sound principle of equity. Their Lordships throw no doubt on the principle, which has been acted on in many cases in India, that a mortgagee cannot, by obtaining a money decree for the mortgage debt, and taking the equity of redemption in execution, relieve himself of his obligation as mortgagee or deprive the mortgagor of his right to redeem on accounts taken and with no other safeguards usual in a suit on the mortgage.

28. In the present case it cannot be disputed that the suit was properly framed to cut off the equity of redemption.

29. The result is that in our opinion the, appellant was in no conceivable view competent to resist the delivery of possession to the respondent. Basanta Kumar Dutt which the latter was about to take, and. that the appellant is not entitled to any of the reliefs he asked for in the suit.

30. The appeals are dismissed, the first appeal with costs and the miscellaneous appeal with no costs.

31. Let the records be sent down to the Court below as early as possible.

Guha, J.

32. I agree.


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