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Bibijan Bibi Vs. Sachi Bewah - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal863
AppellantBibijan Bibi
RespondentSachi Bewah
Cases ReferredPopple v. Sylvester
Excerpt:
mortgage - sale of mortgaged property--execution of decree--transfer of property act (iv of 1882) sections 86, 88, 89--right to redeem--order absolute for sale--stoppage of sale by payment of mortgage debt--civil procedure code (act xiv of 1882) section 291--high court circular order no. 13 of 27th april 1892. - .....should have been received under the power conferred on the court by section 291 of the code of civil procedure and ordered accordingly. the mortgagees have appealed.2. the contention on behalf of the appellants is that an order absolute for sale having been passed and having regard to section 89 of the transfer of property act, the mortgagor's right to redeem was extinguished, and as the practical effect of an order under section 291 permitting the deposit of the mortgage debt and, costs is to extend the period for redemption, the section can have no application in a proceeding for sale in pursuance of an order under section 89. this contention is based on the words at the end of the section, 'and thereupon the defendant's right to redeem and the security shall both be extinguished.'.....
Judgment:

Francis W. Maclean, C.J.

1. The appellants obtained against the respondents an order absolute for sale under Section 89 of the Transfer of Property Act, of property mortgaged to them by the latter. The property was advertised for sale in pursuance of the order, but before the sale took place the mortgagors applied for permission to pay into Court the mortgage money and costs in satisfaction of the decree. The Court executing the decree declined to receive the money tendered by the respondents. The District Judge on appeal held that the money should have been received under the power conferred on the Court by Section 291 of the Code of Civil Procedure and ordered accordingly. The mortgagees have appealed.

2. The contention on behalf of the appellants is that an order absolute for sale having been passed and having regard to Section 89 of the Transfer of Property Act, the mortgagor's right to redeem was extinguished, and as the practical effect of an order under Section 291 permitting the deposit of the mortgage debt and, costs is to extend the period for redemption, the section can have no application in a proceeding for sale in pursuance of an order under Section 89. This contention is based on the words at the end of the section, 'and thereupon the defendant's right to redeem and the security shall both be extinguished.' In the view we take of the I construction of that section, it becomes immaterial to consider whether Section 291 of the Civil Procedure Code should properly be regarded as inconsistent with, or as ancillary to Section 89 of the Transfer of Property Act, nor is it necessary to consider whether, the rules of this Court making Section 291 applicable to sales of mortgaged properties are or are not ultra vires, or whether in fact, any such rules were really necessary. If the words '(sic) upon' relate to the passing of the order absolute for sale only, a difficulty might arise as to the application of Section 291 of the Code of Civil Procedure, hut in our opinion these words relate to the actual sale and the distribution of the proceeds, and not merely to the order passed for the purpose. It is not until a sale takes place and the sale-proceeds are distributed and the mortgage debt is thereby satisfied that the mortgagee's security ought to be extinguished.

3. The Legislature can scarcely have intended that the security was to be extinguished on the mere making of the order for sale, and before the mortgagee had been paid out of the proceeds of sale. The mortgagee continues to be the owner of the property subject to the payment of the debt, until the sale is completed, and then the ownership passes to the auction-purchaser. This seems to us to be a reasonable construction of the concluding words of Section 89 of the transfer of Property Act, and prevents numerous anomalies, which would otherwise arise. In this view, the rule of procedure laid down in Section 291 of the Code of Civil Procedure is not inconsistent with Section 89 of the Transfer of Property Act, as the right to redeem is not extinguished, until the sale has been actually completed and the proceeds of sale dealt with.

4. Though the result has been arrived at by a different train of reasoning, the view we take is in accord with that taken by the High Court at Madras in Mallikarjunadu Setti v. Lingamurti Pantulu (1900) I.L.R. 25 Mad. 244, by the High Court at Bombay in Krishnaji v. Mahadev Vinayak (1900) I.L.R. 25 Bom. 104, by the High Court at Allahabad in Raja Ram Singhji v. Chunni Lal (1897) I.L.R. 19 All. 205 and by this Court in Shyam Kishen v. Sundar Koer (1904) I.L.R. 31 Calc. 373. The appeal, therefore, is dismissed with costs.

Brett, J.

5. I agree.

Mitra, J.

6. I agree with the learned Chief Justice.

Geirt, J.

7. I agree and I think that the interpretation proposed derives support from the difference in the penalty fore-shadowed in the preliminary decree as attaching to default in (sic) according as the preliminary decree is for foreclosure or for sale.

8. When the preliminary decree is for foreclosure, the mortgagor is told that, if payment of the amount found due is not made on the day fixed, he will be absolutely debarred of all right to redeem the property (Section 86). But when the preliminary decree is for sale, no such consequence is foreshadowed as the penalty for default of payment on the day fixed. In the latter case the mortgagor is told (Section 88) that in default of payment, the mortgaged property will he sold, and the proceeds of the sale applied in payment of what is due to the plaintiff. If the Legislature had intended that the extinguishment of the defendant's right to redeem should be one of immediate consequence of the defendant's default to pay on the day fixed, we should have expected it to he mentioned in the preliminary decree.

Woodroffe, J.

9. I agree with the learned Chief Justice in thinking that, having regard to the grounds of decision, the questions whether Clause 3 of the Circular order of this Court of the 27th April 1892, declaring Section 291 of the Civil Procedure Code to be applicable to mortgage decrees, is or is not ultra vires, as also whether (as has been argued before us) the execution sections of the Civil Procedure Code apply to mortgage decrees, do not arise in this appeal, which I agree should be dismissed, not upon any ground based upon or connected with Clause 3 of the Circular order or the provisions of Section 291 of the Civil Procedure Code, but for the reason that, in my opinion, a mortgagor has the right to redeem at any time until the sale of the mortgaged property has been completed, and that, upon a reasonable construction of Section 89 of the Transfer of Property Act, it does not prohibit the exercise of such right after the passing of an order absolute for sale and before the sale under such order has actually taken place. This view as to the right of redemption is in conformity with the pnactice, which, so far as I am aware, has prevailed on the original slide of this Court and with the observations made in the judgment in the case of Jogendra Nath Mukerjee v. Methana Abraham (1902) C.W.N. 769, though there it was considered that the equitable right of the mortgagor to redeem at any time before the (sic) is sold, is not based on, but is outside the provisions of, the Transfer of Property Act.

10. This construction of Section 89 is, it seems to me, also supported by the fact that the extinction of the right to redeem and of the security are treated as being on the same footing by that section. As the extinction of the security merely refers to the sale of the property free of the lien, it cannot of course occur, until the sale has taken place, the security not being extinguished by the order absolute see Popple v. Sylvester (1882) L.R. 22 Ch. D. 98. I agree therefore in thinking that the right to redeem also is not lost, until the sale has taken place and in holding that it was open to the respondents to pay the mortgage debt notwithstanding that an order absolute for sale had been passed, no sale under such order having in fact taken place.


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