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Gunundra Prosad Vs. Baijnath Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal370
AppellantGunundra Prosad
RespondentBaijnath Singh
Excerpt:
mortgage - lien on mortgaged property--mortgagee, joint purchase of mortgaged property by--mortgagor, objection to sale by--transfer of property act (iv of 1882) section 101. - .....in this appeal on behalf of the plaintiff appellant, first whether the lower appellate court was right in holding that the mortgage lien of the mortgagee defendants was not extinguished by their purchase of the mortgaged property; and second, whether the lower appellate court was right in holding that the plaintiff was precluded from raising the objection that the sale in execution of the decree in the mortgage suit was invalid by reason of the decree nisi in that suit never having been made, absolute on the ground of the plaintiff not having raised the objection at any earlier stage of the proceedings.2. in our opinion both these questions ought to be answered in the affirmative.3. with reference to the first question, our attention is called to the provisions of section 101 of the.....
Judgment:

Banerjee and Brett, JJ.

1. Two questions have been raised in this appeal on behalf of the plaintiff appellant, first whether the Lower Appellate Court was right in holding that the mortgage lien of the mortgagee defendants was not extinguished by their purchase of the mortgaged property; and second, whether the Lower Appellate Court was right in holding that the plaintiff was precluded from raising the objection that the sale in execution of the decree in the mortgage suit was invalid by reason of the decree nisi in that suit never having been made, absolute on the ground of the plaintiff not having raised the objection at any earlier stage of the proceedings.

2. In our opinion both these questions ought to be answered in the affirmative.

3. With reference to the first question, our attention is called to the provisions of Section 101 of the Transfer of Property Act, but those provisions evidently do not apply to the present case because, the purchase of the mortgaged property has been made, not by the mortgages alone, but by the mortgagees jointly with other persons in undivided shares, and they have purchased other properties along with the mortgaged property. In that state of things it cannot he said that the provisions of Section 101 of the Transfer of Property Act apply to the case, so as to extinguish the mortgage Hen; and we think the Court of Appeal below was right in holding that the mortgage should be regarded as existing, it being evidently for the benefit of the mortgagee within the meaning of Section 101 that it should be so regarded.

4. As to the second question, we think the Court below is right in the view it has taken. We may observe that the plaintiff is not materially prejudiced by the decision of the Court below, when that decision reserves to him the right of redemption, if he has any.

5. The appeal therefore fails and must be dismissed with costs.


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