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Kasinath Das and ors. Vs. Sadasiv Patnaik and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1893)ILR20Cal805
AppellantKasinath Das and ors.
RespondentSadasiv Patnaik and ors.
Cases ReferredDebendra Kumar Mandel v. Rup Lall Dass I.L.R.
Excerpt:
attachment - civil procedure code (act xiv of 1882), sections 53, 274, clause (c)--rights of purchaser of mortgage bond at sale in execution of decree--amendment of plaint. - .....on the 19th of november 1890 purchased the bond held by bhagawan. they now seek to enforce the bond in question. in paragraph 6 of the plaint they state as follows:although a large sum would be due to us if calculation is made of the principal and interest of the money covered by the bond in suit, still there being no likelihood of the whole amount being realized from the mortgaged property, we have relinquished the claim for interest and brought this suit for only the principal rs. 6,000.2. and they pray:(ka), that it may be ordered by the court that the debtor-defendants do on a day to be fixed by the court pay the said amount of principal, and in default thereof they be deprived of their right of redemption.(kha). that whatever interest may be due from the institution of suit.....
Judgment:

O'Kinealy and Ameer Ali, JJ.

1. This appeal arises out of a suit brought by the plaintiff's under the following circumstances: The defendants 1 and 5 and the father of the defendants 2 to 4 had, on the 27th of August 1878. executed a mortgage bond for Rs. 6,000 in favour of one Bhagawan Sahu, since deceased, by which various immoveable properties were hypothecated as a collateral security for the debt. Bhagawan was himself indebted to one Bishnath. Upon Bhagawan's death, the plaintiff's, who represent Bishnath, brought a suit against his (Bhagawan's) representatives (defendant 6 and one Moyna Bibee, since deceased), and in execution of their decree on the 19th of November 1890 purchased the bond held by Bhagawan. They now seek to enforce the bond in question. In paragraph 6 of the plaint they state as follows:

Although a large sum would be due to us if calculation is made of the principal and interest of the money covered by the bond in suit, still there being no likelihood of the whole amount being realized from the mortgaged property, we have relinquished the claim for interest and brought this suit for only the principal Rs. 6,000.

2. And they pray:

(Ka), That it may be ordered by the Court that the debtor-defendants do on a day to be fixed by the Court pay the said amount of principal, and in default thereof they be deprived of their right of redemption.

(Kha). That whatever interest may be due from the institution of suit until the date of realization of the said money under the terms of the bond, be awarded (to us).' '(Ga) That the costs of this suit be ordered to be awarded to us.

3. Having regard to the nature of the bond and the statements above referred to, the object of the suit was clearly to realize the amount secured by the enforcement of the bond according to law.

4. The defendants in their written statements raised various questions of law and fact, but these have not been gone into as the suit has been dismissed on two grounds, one of which certainly is of a somewhat peculiar character. The Subordinate Judge thinks that the plaintiffs ought to have prayed for the sale of the mortgaged properties, and as they did not do so, their suit must fail. As a matter of fact the plaintiff in the course of the trial prayed for the amendment of the prayer, but the Judge, relying on Section 54, Clause (c) of the Civil Procedure Code, rejected the petition. It seems to us that the Subordinate Judge has acted on an erroneous view of the law. Section 53, Clause (c) distinctly provides that an amendment, so long as it does not alter the character of the suit, may be allowed at any time before judgment. The restriction is only as to the nature of the suit; the law prohibits any such amendment as would change the fundamental character of the suit; for example, a plaint cannot be so amended as to convert a claim based on contract into an action on tort. But an alteration in the relief does not alter the character of a suit.

5. In the present case it does not appear that any such amendment was necessary, for the relief which the plaintiff's sought and to which, in law, they were entitled, if the facts at issue were established is sufficiently indicated in the statements in the plaint already set out. Section 54 has nothing to do with the question: it refers to the rejection of a plaint in case it does not fulfil certain conditions. But those elements are not present here, nor was the plaint rejected under Section 54. As we have said above, in our opinion the Subordinate Judge was in error in disallowing the petition for amendment. The second ground on which the suit has been disallowed may be summarized as follows: The Subordinate Judge thinks that as the plaintiff's claim to have acquired, by their purchase of the 19th of November 1890, the mortgagee's right, which is an interest in immoveable property, and as the mortgage bond was not attached under Section 274 of the Civil Procedure Code, the plaintiffs' suit must fail.

6. The point in question was directly raised and decided in the case of Debendra Kumar Mandel v. Rup Lall Dass I.L.R. 12 Cal. 546, where it was held that an attachment under Section 274 was not necessary to make the sale of a mortgage bond carry the lien as well as the debt. The Subordinate Judge has relied, however, on the case of Srinath Dutt v. Gopal Chundra Mittra I.L.R. 9 Cal. 511 and certain cases of the Madras and Allahabad High Courts. The Calcutta, case referred to does not go further than this, that non-compliance with the provisions of Section 274 in the case of a mortgage bond was an irregularity sufficient to justify the sale being set aside. As their Lordships of the Judicial Committee have often laid down, if the Court has jurisdiction, a mere irregularity will not affect the rights of the parties. But Baboo Karuna Sindhu Mookerjee argues that failure to attach under Section 274 is more than an irregularity; that in fact it relates to the sale and conveys no right whatsoever to the purchaser in the collateral security. No doubt the Madras and Allahabad High Courts have gone to that extent. But, as at present advised, we are not disposed to take a different view of the law from that taken in Debendra Kumar Mandel v. Rup Lall Dass I.L.R. 12 Cal. 546.

7. The question, however, remains, What was sold? In other words, was it the bond or was it the debt? The endorsement on the back of the bond, dated the 6th of December 1890, furnishes little or no indication, and the question can only be answered by a reference to the execution proceedings which culminated in the sale of the 19th of November 1890. If the bond was sold, we think, following the case of Debendra Kumar Mandel v. Rup Lall Dass I.L.R. 12 Cal. 546, the non-attachment under Section 274 would not affect the right of the plaintiffs to have the collateral security enforced by the sale of the properties hypothecated. The order of the Subordinate Judge is accordingly set aside and the case remitted to him to be dealt with according to law. Costs to abide the result.


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