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Jonmenjoy Mulliek Vs. Dossmoney Dossee - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in(1881)ILR7Cal714
AppellantJonmenjoy Mulliek
RespondentDossmoney Dossee
Cases ReferredBarker v. Smart
Excerpt:
mortgage - bond-money--decree--mortgage--decree--sale in execution--mortgagee's lien. - .....suggested to us that the judgment and decree were not properly signed; but whether they were or not, we are unable in this suit to give the plaintiff any relief. of course, it is quite open to him to make an application in the former suit to the proper division bench, either for a rehearing or a review, as he may be advised.5. the second question referred to us, we do not think it necessary to answer.
Judgment:

Richard Garth, C.J.

1. We think that the first question should be answered in the affirmative.

2. The plaintiff has clearly no right to sue for the restoration of the mortgaged property. His proper course, in our opinion, was that which he adopted in the first instance,---namely, to sue to have his lien upon the property declared.

3. The High Court's judgment in Dossmoney Dossaa v. Jonmenjoy Mulliok (I. L. Rule, 3 Cal., 363; S. C., 1 C. L. R., 446), appears to us to be erroneous. The learned Judges in that case seem to think that because the plaintiff had obtained a decree for his mortgage-money, he had thereby lost his lien; but this is not so. There is ample authority in this Court to show that such a proposition is unfounded. A man who has an equitable lien for a simple contract-debt does not lose his lien by turning his debt into a judgment-debt. Under certain circumstances he may be restrained from pursuing both his remedies simultaneously; but having enforced one remedy without fully realizing his debt, he may afterwards proceed to enforce the other: see Barker v. Smart (3 Beaven, 64).

4. It has been suggested to us that the judgment and decree were not properly signed; but whether they were or not, we are unable in this suit to give the plaintiff any relief. Of course, it is quite open to him to make an application in the former suit to the proper Division Bench, either for a rehearing or a review, as he may be advised.

5. The second question referred to us, we do not think it necessary to answer.


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