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Ajudhia Pershad Vs. Baldeo Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1894)ILR21Cal818
AppellantAjudhia Pershad
RespondentBaldeo Singh
Cases ReferredPoresh Nath Mojumdar v. Ramjodu Mojumdar I.L.R.
Excerpt:
civil procedure code, 1882, section 235 - order absolute for sale, application for--execution of decree--verification of application--limitation--transfer of property act (iv of 1882), section 89. - .....decree ma.de by the court, the mortgagee makes an application for an order absolute (or for a decree absolute, for that would perhaps be a more appropriate expression), the application is not an application for the execution of the decree, because, until the decree absolute is made under section 89, there is in fact no decree capable of execution. a question somewhat akin to that which we have to determine was considered by in poresh nath mojumdar v. ramjodu mojumdar i.l.r., 16 gal., 246. the question that was raised in that case was whether, until the order absolute is made under section 87 of the transfer of property act, the mortgagor could not redeem the mortgage ; and with reference to this question the learned judges expressed themselves as follows : ' apart however from the.....
Judgment:

Ghose and Gordon, JJ.

1. The parties to this proceeding stand to each other in the relation of mortgagor and mortgagee. The mortgagors are three in number ; they had borrowed from the mortgagee a considerable sum of money ; and a suit was brought upon the mortgage, and, in the course of the suit, a compromise was entered into between the parties. Under this compromise, each of the mortgagors agreed to pay to the mortgagee the sum of Rs. 4,000 by certain instalments; and it was provided that as security for the sum payable by each mortgagor, a third share of the properties already mortgaged should continue to be in mortgage, and that in the event of any of the mortgagors committing default in three consecutive instalments, the mortgagee should be entitled to realise the money payable by such mortgagor by sale of his share of the properties mortgaged. A decree was accordingly made in those terms. Subsequently the mortgagee, by reason of the default committed by the mortgagors in paying the instalments on accountof the years 1297, 1298 and 1299, applied for the sale of the mortgaged properties. It appears that at the time when this application was presented, it bore no verification by the mortgagee, but subsequently, upon an order made by the Court, the defect, if there was any, was rectified.

2. The mortgagors raised several objections to the application of the mortgagee being granted. They contended that this being an application for execution of the decree, it could not be 'proceeded with, inasmuch as it did not contain, at the time of presentation, the verification of the mortgagee, that being one of the requirements of Section 235 of the Code of Civil Procedure; that the application was barred by Limitation; and that because subsequent to the default complained of by the mortgagee, i.e., as regards the instalments for 1297, 1298 and 1299 he received from them (the mortgagors) the instalment for the year 1296, he thereby waived the default on account of those years.

3. As regards this last objection, it is sufficient to say that the amount received by the mortgagee after this default was not in respect of any one of the three years with which we are now concerned. What was received by the mortgagee was the amount payable on account of a year antecedent to the three years in respect of which default has now occurred, and for whiqh, in accordance with the express stipulations contained in the decree, the mortgagee is entitled to apply for realization of the amount due to him by sale of the mortgaged properties.

4. The question of limitation raised by the mortgagors is intimately connected with the objection that the application presented on behalf of the mortgagee, having not being duly veriRed at the time it was presented, it could not be regarded as an application for execution within the meaning of the Code of Civil Procedure. The learned vakil in support of his argument relied upon a cfase in the Allahabad High Court, Oudh Behari Lal v. Nageshar Lal I. L. R., 13 All., 278, where it seems to have been held that an application for an order absolute for sale under Section 89 of the Transfer of Property Act is a proceeding in execution and subject to the rules of procedure governing such matters. Now, on referring to the Transfer of Property Act itself, it will be found that when a mortgagee applies either for foreclosure of a mortgage, or for sale of the mortgaged premises, the Court makes a preliminary decree-a decree nisi so to say -ordering that the mortgagors should be at liberty to pay to the mortgagee the amount of money due to him within a certain time fixed, and that in the event of the mortgagor not satisfying the claim of a mortgagee within the time limited, the property should be foreclosed, or, in the ease of an application for sale of the mortgaged premises, the mortgaged property or a sufEcient part thereof should Be sold.

5. Then we find in Section 89 of the Act that, in the event of the mortgagor not paying to the mortgagee the amount of money mentioned in the preliminary decree, and upon an application being made by the mortgagee, an order absolute for sale should be made. Therefore when, after a preliminary decree ma.de by the Court, the mortgagee makes an application for an order absolute (or for a decree absolute, for that would perhaps be a more appropriate expression), the application is not an application for the execution of the decree, because, until the decree absolute is made under Section 89, there is in fact no decree capable of execution. A question somewhat akin to that which we have to determine was considered by in Poresh Nath Mojumdar v. Ramjodu Mojumdar I.L.R., 16 Gal., 246. The question that was raised in that case was whether, until the order absolute is made under Section 87 of the Transfer of Property Act, the mortgagor could not redeem the mortgage ; and with reference to this question the learned Judges expressed themselves as follows : ' Apart however from the English cases, it is quite clear that the Legislature in enacting Section 87 intended to give some effect to it, but if the respondent's contention were right, this section would be of no effect, and Section 86 plus non-payment of the money would give a right of possession. Section 87 of the transfer of Property Act provides that if the payment be not made within the time fixed in the decree ' the plaintiff may apply to the Court for an order that the defendant, and all persons claiming through or under him, be debarred absolutely of all right to redeem the mortgaged property.' That means without such an order the defendant would not be debarred of all right to redeem the mortgaged property. The fact that the Legislature allowed the plaintiff to apply for such an order shows that without that order the right to redeem would not be taken away. Section 87 goes on to say: 'And the Court shall then pass such order, and may, if necessary, deliver possession of the property to the plaintiff.' If the property be not redeemed the Court would have to pass an order absolute. It seems quite clear to us that the fact of the Legislature having made this provision requiring an order absolute to be made, makes the earlier order simply an order nisi, and the mortgagor can at any time, until the order absolute is made, redeem bis property.'

6. We may say we entirely concur in the view thus expressed. It seems to us that the application that was presented by the mortgagee for sale of the mortgaged property, being an application within the meaning of Section 89 of the Transfer of Property Act, it could be given effect to, even if it was not in compliance with the terms of Section 235 of the Code of Civil Procedure.

7. We have already said that the question of limitation that was raised in the Court below by the appellant depended upon the validity of the objection that the application of the mortgagee should have been verified. If this objection could not be sustained, it was admitted by the learned vakil for the appellant that the plea of limitation also could not succeed.

8. On these grounds we are of opinion that this appeal should fail, and we accordingly dismiss it with costs.


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