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Dwarka Nath Nandi and ors. Vs. Mritunjoy Patra - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in3Ind.Cas.175
AppellantDwarka Nath Nandi and ors.
RespondentMritunjoy Patra
Cases ReferredMadras High Court Dorasami v. Venkataseshayyar
Excerpt:
transfer of property act (iv of 1882), section 85 - civil procedure code (act xiv of 1882), section 43--mortgage--holder of two mortgage on same property suing separately on each. - .....the court of first instance held that the plaintiffs were not entitled to an order in the present suit for sale of the two properties comprised in the second mortgage. the learned munsif, therefore, gave the plaintiffs a decree under which, in default of the money due not being paid within three months from the date of the decree, the plaintiffs were to be entitled to bring, to sale the property not included in the second mortgage.3. against that decree an appeal was preferred to the district judge of bankura, mr. b. c. mittra. the judgment of the learned district judge is in these terms: 'this appeal has been urged on two grounds: first, that the munsif was wrong in holding that the instalments for 1302 and 1303 have been paid by inclusion in a subsequent bond and, secondly, that the.....
Judgment:

1. The plaintiffs in this suit sue upon a simple mortgage-bond executed in their favour by the defendants on the 5th Assar 1301. The mortgaged properties were three in number. On the 17th Jaisto 1304, the defendants executed a second and independent mortgage-bond in favour of the plaintiffs, this mortgage comprising two out of the three properties covered by the earlier mortgage.

2. The Court of first instance held that the plaintiffs were not entitled to an order in the present suit for sale of the two properties comprised in the second mortgage. The learned Munsif, therefore, gave the plaintiffs a decree under which, in default of the money due not being paid within three months from the date of the decree, the plaintiffs were to be entitled to bring, to sale the property not included in the second mortgage.

3. Against that decree an appeal was preferred to the District Judge of Bankura, Mr. B. C. Mittra. The judgment of the learned District Judge is in these terms: 'This appeal has been urged on two grounds: first, that the Munsif was wrong in holding that the instalments for 1302 and 1303 have been paid by inclusion in a subsequent bond and, secondly, that the order for sale should not have been confined to plot No. 3 to the exclusion of plots Nos. 1 and 2 which are also included in a subsequent mortgage by the defendant to the plaintiffs. On the first point, I see no reason, on examination of the accounts, to differ from the Munsif's finding. On the second point, the authorities are not clear, and I would not go counter to the views adopted by the lower Court. The appeal is dismissed with costs. Cross-appeal not pressed is dismissed.'

4. In this second appeal, it is contended that the learned District -Judge was wrong on both the points which he decided in the judgment which I have just quoted. In regard to the first point which was stated to be a minor point and which, though it was not abandoned, was not strongly pressed in argument, I think that I must accept the findings of both the Courts below as findings of fact. The learned Munsif deals with this matter as follows : ' The plaintiff's account books show that the instalments due for 1302 and 1303 were entered each year and interest thereon was calculated before the duos for the year were calculated. In that way, the account is taken over to the date of the next mortgage-bond, dated 1304 (Exhibit II). So clearly the instalments due for 1302 and 1303, on the bond in suit, have been included with interest and incorporated in the subsequent bond, Exhibit II. That amounts to satisfaction of the instalments due in 1302 and 1303 and the instalment due in 1301 has been credited in the plaint.' It has not been shown to me that that view of the facts is incorrect or involves any error of law. This ground of appeal, therefore, fails. The second ground, however, clearly involves a question of law and, on the best consideration that I have been able to give to it, regard being had to the arguments adduced at the bar, I think that the plaintiffs are entitled in this suit for a decree which will enable them to realize payment of the sum due to them by bringing to sale all the three properties comprised in the first mortgage. In the case of Sundar Singh v. Bholu 20 A. 322 it was decided by a Full Bench of the Allahabad High Court that there was nothing in the Code of Civil Procedure or in the Transfer of Property Act to prevent the holder of two independent mortgages over the same property, who was not restrained by any covenant in either of them, from obtaining a decree for sale on each of them in a separate suit. This case was referred to in a later case decided by the Madras High Court Dorasami v. Venkataseshayyar 25 M. 108 in which it was held by Sir Arnold White, C.J. and Bhashyam, Ayyangar J., that, where 13. executed a simple mortgage over certain lands in favour of A. and then mortgaged the same lands to A. with possession and A. brought a suit on the earlier mortgage for sale of the mortgaged property subject to the later mortgage, the suit could not be maintained. The plaintiffs in the case before me are prepared to surrender their claim to bring the three properties comprised in their first mortgage to sale subject to their rights under the second mortgage. They are willing to accept a decree in the ordinary form under Section 88 of the Transfer of Property Act in respect of their first mortgage without reference to their claims under the subsequent mortgage. In Dr. Gour's Law of Transfer in British India, Second Edition, Second Volume at page 891, the following observations will be found : The question as to the joinder of parties being directed against the multi-fariousness of suits, it has been held that a party suing upon one of his mortgages can have no excuse for his not including in the suit his rights under his other mortgages, since ho must necessarily have notice of them. This view, it is said, finds support in the form, of decree prescribed in the Code which provides that upon redemption the plaintiff is to reconvey the said mortgaged premises ' free and clear from' all incumbrances done by him ' and which indicates that the mortgagee is not to reserve to himself right over the mortgaged property. Similar language finds place in Sections 86 and 88. But never-the-less the question is not free from difficulty. Indeed, it may not always be possible to enforce all the Mortgages together, for they may not be all mature for repayment. In this case is the mortgagee to wait till he can maintain a joint claim, and if so, what if a portion of his claim in the meantime becomes time-barred? The doctrine, if sound, is scarcely distinguishable from the consolidation of securities. It was probably to steer clear of these difficulties that the Allahabad High Court has adopted the mean course of allowing a holder of two independent mortgages over the same property, who is not restrained by any covenant in either of them to obtain a decree for the sale on each of the mortgages in a separate suit, but subject to this that he cannot sell the property twice over, nor sell it under the second decree subject to the first. If this had been permitted, the mortgagee would be enabled to sell the equity of redemption apart from the property itself, which, so far as the sale is made at the instance of the mortgagee, would be opposed to the tenor of the Act and let in the mischief, Section 99 was enacted to avert.' I have read this passage from the commentary of the learned author on. Section 85 of the Transfer of Property Act, because it appears to me to indicate the law correctly and to suggest the course that should be adopted in the present suit.

5. I think following the Allahabad High Court rather than the Madras High Court that the decree made by the Court below should be modified so as to enable the plaintiffs to sell all the three properties in-eluded in the mortgage in suit. I made no order which will preclude the plaintiffs from bringing a suit upon their second mortgage, but at the same time I decide nothing as to the rights which they will be in a position to enforce in such a suit. The prayer in the plaint that the mortgaged properties Nos. 1 and 2 of the schedule should be sold subject to the charge of the interest that may be due on the 37 maps of paddy advanced on the 17th Jaisto 1304 is rejected. A decree will be made to the effect which I have indicated.

6. In substance the appellants have succeeded. The respondents will, therefore, pay their costs in this Court and also in the Court below.


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