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Satish Chandra Nag Vs. Silchar Co-operative Town Bank Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal290
AppellantSatish Chandra Nag
RespondentSilchar Co-operative Town Bank Ltd.
Excerpt:
- .....rules to apply to the registrar and similarly he was entitled under those rules to enforce the award by execution in the munsifs court. now, if the rules made under the act have this effect, i can see no escape from the conclusion that, even if there be a mortgage in favour of the society, the award made by the registrar can in no sense be a mortgage decree. under section 43(1), the dispute referred to the registrar must be a dispute between the members of the society and the committee. the registrar has no power to decide disputed claims of priority or to make a decision which in any way affects the rights of other persons interested either in the mortgage security or in the equity of redemption. it is further clear from the award itself that under [the terms of the award the.....
Judgment:

Henderson, J.

1. This appeal is by the judgment-debtor. A certain property was mortgaged by the appellant in favour of the Cachar Marine Fire and Life Insurance Company. Certain huts, the property of the appellant, standing on the land were not included in the mortgage. The appellant then executed a second mortgage in favour of the respondent. This mortgage included the huts. The first mortgagee instituted a proper mortgage suit and obtained a decree. Neither the appellant nor the respondent exercised their right to redeem and the property was purchased by the first mortgagee in execution of the decree. The result of this was that the huts, instead of being standing structures became worth nothing more than materials. The respondent did not institute any suit but applied to the Registrar of the Co-operative Credit Societies and obtained an award. He then put the award into execution in the Court of the Munsif. He first of all applied for the sale of the huts. This application was dismissed for default. The present application is for execution by attachment of the salary of the appellant. The appellant then. filed an objection under Section 47, Civil P.C. That objection, as now pressed is that the appellant should be given credit for Rs. 400 for the value of the huts.

2. It appears that the respondent applied to the Registrar under the Rules made by the Local Government under the provisions of Section 43 (1) of Act 2 of 1912. Those rules are not before me. It was not disputed, however, in the Munsif's Court and it must be taken that the respondent was either allowed or compelled by those rules to apply to the Registrar and similarly he was entitled under those rules to enforce the award by execution in the Munsifs Court. Now, if the rules made under the Act have this effect, I can see no escape from the conclusion that, even if there be a mortgage in favour of the Society, the award made by the Registrar can in no sense be a mortgage decree. Under Section 43(1), the dispute referred to the Registrar must be a dispute between the members of the Society and the Committee. The Registrar has no power to decide disputed claims of priority or to make a decision which in any way affects the rights of other persons interested either in the mortgage security or in the equity of redemption. It is further clear from the award itself that under [the terms of the award the respondent must first put up to sale not the property but the appellant's equity of redemption. Thus, in no sense could it be said that the award which is now being executed is a mortgage decree. The relevant part of the award is in these terms:

If the right, title and interest of the defendant in the property set out and described in the schedule below is sold and if the sale proceeds should be found insufficient to discharge the dues the subsequent interest balance will be realised according to law.

3. It is clear then that under the terms of the award the appellant had the right to demand that the huts be put up to sale first. It may be noted that the huts are the only property set out in the schedule to the award. Now when the present execution case was. filed, the huts had ceased to exist and it was no longer possible to bring them to sale. The appellant's case is that they are worth Rs. 400 which is based upon the valuation made by the respondents in the sale proclamation in the first execution case. His case further is that the huts had disappeared owing to the default of the respondent and he is therefore entitled to be credited with their value in the execution proceedings. In support of that case, he relied upon two facts: first, that the respondent did not redeem the prior mortgage and thereby preserve the land as a security for the present debt, and second, that in the former execution proceedings the. respondent having made an inadequate bid of Rs. 200 eventually withdrew it and finally allowed the execution case to be dismissed, for default. Both the Courts below held that neither of these facts gives him any claim to an allowance for the value of the huts. I will deal with the former first. It is enough to say that the respondent owes no duty to the appellant to redeem the prior mortgage. He was certainly entitled to do so if he thought it desirable to protect his own interest. The loss of the land was no more due to the failure of the respondent to redeem than it was to the failure of the appellant himself to redeem. This claim only requires to be put forward to be rejected.

4. The facts with regard to the second point are as follows: The respondent offered a bid of Rs. 200. The appellant's brother then filed a petition asking for a stay of further proceedings on the ground that he was the real owner of the huts and that he had instituted a title suit to establish his right. The respondent promptly withdrew his offer and declined to bid. No other offers were forthcoming. Here again, the respondent owes no duty to the appellant to offer any particular sum or even to bid at all. But supposing he did, the Munsif was right in holding that he was justified in withdrawing his. bid., Bitter experience had shown him that the appellant is a thoroughly unscrupulous man who would stop at nothing to evade the payment of his debts. As soon as the brother's petition was filed, it became apparent that the old device of a claim by a relation was being resorted to. I am not at all surprised that the respondent hastily withdrew his bid. Finally, even if the respondent had been guilty of the neglect of any duty which he owed to the appellant, the latter's claim must fail, in view of the finding of the learned Judge to the effect that the huts were actually removed by the appellant's brother at his own instigation and with his connivance. The objection was, therefore, properly rejected. The appeal is dismissed with costs. Hearing fee is assessed at three gold mohurs.


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