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Nittyanund Singh and ors. Vs. Koob Lall Chowdhry - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal839
AppellantNittyanund Singh and ors.
RespondentKoob Lall Chowdhry
Excerpt:
execution of decree - mortgage-decree--decree on mortgage-bond--sale of decree--conveyance--registration. - .....held by another person, has purchased the property hypothecated by that decree. the defendant, koob lall, stating that he was the assignee of the decree-holder, then executed the mortgage-decree obtained by golab chand and was about to put up for sale a portion of the property previously purchased by the plaintiff, when the plaintiff, in order to protect that property from sale, deposited under protest the money due under the decree. the present suit is to recover the money so paid. it has been found by both the lower courts that golab chand, on the 6th august 1877, sold to one jotee under an unregistered deed of conveyance, and that jotee in august 1880 transferred his rights thereunder to koob lall by a registered conveyance. both the courts have found, and we think rightly, that.....
Judgment:

Prinsep, J.

1. We think that the orders passed by the lower Courts are correct. Golab Chand Nowlakha, defendant No. 5, in 1877, obtained a mortgage decree against Imdad Ali. The plaintiff, in execution of a decree held by another person, has purchased the property hypothecated by that decree. The defendant, Koob Lall, stating that he was the assignee of the decree-holder, then executed the mortgage-decree obtained by Golab Chand and was about to put up for sale a portion of the property previously purchased by the plaintiff, when the plaintiff, in order to protect that property from sale, deposited under protest the money due under the decree. The present suit is to recover the money so paid. It has been found by both the lower Courts that Golab Chand, on the 6th August 1877, sold to one Jotee under an unregistered deed of conveyance, and that Jotee in August 1880 transferred his rights thereunder to Koob Lall by a registered conveyance. Both the Courts have found, and we think rightly, that the title under which Jotee acquired the rights of Golab Chand not being registered, and the registration law requiring that such conveyances should be registered, the title of Koob Lall from Jotee, so far as it relates to the mortgage lien on this property, is defective, inasmuch as it cannot be proved to come from Golab.

2. We think that the rule recently laid down by a Full Bench of this Court as regards the right of an obligee to recover on an unregistered mortgage bond, should be applied to cases such as that now before us, and that accordingly Koob Lall must be held to have acquired only a money decree entitling him to recover the amount of the decree without any hypothecation of any particular property.

3. Under such circumstances plaintiff, as purchaser of the property held by Imdad Ali, is entitled to recover the money paid to stay the resale of this property in execution of the decree held by Koob Lall since the rights of the debtor have passed to him, and Koob Lall can enforce no lien on it.

4. We dismiss the appeal with costs.


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