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Tara Prosad Mandal Vs. Kristo Prosad Panda - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.473
AppellantTara Prosad Mandal
RespondentKristo Prosad Panda
Excerpt:
mortgage - priority--subrogation--lis pendens--keeping alive earlier mortgage--intention--presumption. - .....the defendant no. 4, the monies lent on the plaintiff's mortgage went towards the payment of the prior mortgages, which though subsequent to the mortgages of the defendant no. 4, were prior to the mortgage suit of the defendant no. 4. there was, therefore, no new transaction nor dealing with the property during the pendency of the suit. all that happened was that the plaintiff took over mortgages which had come into existence prior to the mortgage suit of the defendant no. 4 and thereby became subrogated to the rights of those mortgagees. those mortgagees obviously could not have been bound by the doctrine of lis pendens, and the plaintiff who took over those mortgages could not have been so bound.2. then, it has been argued that we should come to the conclusion that the plaintiff.....
Judgment:

Woodroffe, J.

1. The judgment of the Munsif in this case has been reversed by the District Judge, on the ground that the plaintiff was not, by reason of the doctrine of lis pendens, entitled to redeem the defendant No. 4. That doctrine, however, does not, in my opinion, operate with that effect, because, although it is a fact that the plaintiff's mortgage was subsequent to, and taken during the pendency of, the mortgage suit instituted by the defendant No. 4, the monies lent on the plaintiff's mortgage went towards the payment of the prior mortgages, which though subsequent to the mortgages of the defendant No. 4, were prior to the mortgage suit of the defendant No. 4. There was, therefore, no new transaction nor dealing with the property during the pendency of the suit. All that happened was that the plaintiff took over mortgages which had come into existence prior to the mortgage suit of the defendant No. 4 and thereby became subrogated to the rights of those mortgagees. Those mortgagees obviously could not have been bound by the doctrine of lis pendens, and the plaintiff who took over those mortgages could not have been so bound.

2. Then, it has been argued that we should come to the conclusion that the plaintiff intended to extinguish those earlier securities which were paid off by the money which he advanced. But, in the absence of evidence to the contrary, the presumption is that he intended to keep those earlier mortgages alive for his benefit.

3. Another question has been raised before us in argument, that is, it has been contended on behalf of the defendant that he, as the purchaser of the property and the holder now of the equity of redemption, stands in the shoes of the mortgagor and that he has a prior right to redeem over the plaintiff. It is unnecessary to express any opinion upon this point, because this is a case which has never been made during any part of the proceedings. It is not found in the issues which were framed, nor discussed in the judgment of either of the lower Courts.

4. In these circumstances I would set aside the judgment of the District Judge and restore that of the Munsif with costs.

Teunon, J.

5. I agree.


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