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Tarak Nath Adhikari Vs. Bhubaneshwar Mitra - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal427,(1915)ILR42Cal780
AppellantTarak Nath Adhikari
RespondentBhubaneshwar Mitra
Excerpt:
mortgage - sale of mortgaged property for any claim of mortgagee unconnected with mortgage--civil procedure code (act v of 1908), order xxxiv, rule 14--transfer of property act (iv of 1882), section 99. - .....been sold and he complains against the sale. it appears that the opposite party had obtained a money-decree against the judgment-debtor and in execution of that money-decree, ho sold and purchased certain properties which were mortgaged to him by the petitioner judgment-debtor under a certain mortgage deed. the opposite party had also instituted a mortgage suit for the recovery of his mortgage money under his mortgage deed and while this mortgage suit was pending, he executed his money-decree and in execution of the decree purchased some of the mortgaged properties himself. the case for the petitioner is that notwithstanding the fact that an alteration in the law has been made by the provisions of order xxxiv, rule 14, of the present civil procedure code, section 99 of the transfer.....
Judgment:

Sharfuddin and Teunon, JJ.

1. This is a Rule on the opposite party to show cause why the order passed by the learned Judge in appeal should not be set uside on the ground that the sale was contrary to the provisions of Order XXXIV, rule 14, and also on the ground that the sale was made without taking the permission of the Court which appointed a receiver.

2. The second point (in the Rule) has not been argued by Dr. Ghose who appeared on behalf of the petitioner.

3. The petitioner is the judgment-debtor. Some of his properties have been sold and he complains against the sale. It appears that the opposite party had obtained a money-decree against the judgment-debtor and in execution of that money-decree, ho sold and purchased certain properties which were mortgaged to him by the petitioner judgment-debtor under a certain mortgage deed. The opposite party had also instituted a mortgage suit for the recovery of his mortgage money under his mortgage deed and while this mortgage suit was pending, he executed his money-decree and in execution of the decree purchased some of the mortgaged properties himself. The case for the petitioner is that notwithstanding the fact that an alteration in the law has been made by the provisions of Order XXXIV, rule 14, of the present Civil Procedure Code, Section 99 of the Transfer of Property Act should be given effect to. We find, however, that under the provisions of Section 99 of the Transfer of Property Act a mortgagee could not bring the mortgaged property to sale in satisfaction of any claim whether arising under the mortgage or not, except by institution of a suit under Section 67 of that Act. Order XXXIV, rule 14 has introduced a change, limiting the restriction on the mortgagee's right to sell the mortgaged properties to claims arising under the mortgage. It is clear, therefore, that the Code has repealed Section 99 of the Transfer of Property Act and in its place this present rule has been enacted. The first part of the Section provided that a mortgagee should not bring the mortgaged property to sale otherwise than by instituting a suit under Section 67 of the Transfer of Property Act. In so far as it, precluded the mortgagee from selling the mortgaged property under a judgment unconnected with the mortgage debt, the restriction has been considered inexpedient and has been removed. It follows, therefore, that a mortgagee is competent to have his mortgaged property sold in satisfaction of any claim which ho may have against the mortgagor unconnected with the mortgage.

4. For the above reasons, we discharge this Rule with costs.


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