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Sayamali Molla Vs. AnisuddIn Molla and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1929Cal609
AppellantSayamali Molla
RespondentAnisuddIn Molla and ors.
Cases ReferredRam Narain v. Bandi
Excerpt:
- .....defendant in the suit along with the mortgagor and a transferee from him. the defendant set up his prior mortgage and plaintiff's suit as against him was dismissed as the plaintiff did not ask for any decree against him. plaintiff obtained the usual decree for sale as against the other defendants in that suit on 8th may 1915. defendant in this case put the property mortgaged to him to sale in execution of his mortgage decree and purchased it himself on 15th august 1916, and obtained possession.2. plaintiff afterwards executed his decree and purchased both the mortgaged properties on 19th november 1920 but obtained possession only of plot 2. plaintiff brought the suit out of which the appeal to this court arose on 17th july 1925 for redemption of plot 1 of the plaint on payment of the.....
Judgment:

B.B. Ghose, J.

1. The facts of the ease giving rise to this reference are these: One Bainuddin mortgaged a plot of land to defendant 1 in 1904. In 1908 he again mortgaged this piece of land with another plot (No. 2 in the schedule of the plaint) to the plaintiff. Defendant 1 (who will be referred to as the defendant) brought his suit on his mortgage in 1911 without impleading the plaintiff and obtained a decree for sale against the mortgagor alone on 30th November 1911. Plaintiff brought a suit to enforce his mortgage in 1915. He made the present defendant a defendant in the suit along with the mortgagor and a transferee from him. The defendant set up his prior mortgage and plaintiff's suit as against him was dismissed as the plaintiff did not ask for any decree against him. Plaintiff obtained the usual decree for sale as against the other defendants in that suit on 8th May 1915. Defendant in this case put the property mortgaged to him to sale in execution of his mortgage decree and purchased it himself on 15th August 1916, and obtained possession.

2. Plaintiff afterwards executed his decree and purchased both the mortgaged properties on 19th November 1920 but obtained possession only of plot 2. Plaintiff brought the suit out of which the appeal to this Court arose on 17th July 1925 for redemption of plot 1 of the plaint on payment of the mortgage money due on the mortgage of defendant and for possession. Defendant 2 is a brother of defendant 1 and defendant 3 is said to be a tenant under the other defendants. These two may be left out of consideration.

3. Various points were raised in defence by the written statement of the first two defendants. Defendant 3 did not appear. All the Courts have thrown out the suit on the ground that it is barred by limitation, and this question has caused the reference to the Full Bench.

4. All the three Courts concurred in holding that the suit was barred under Article 132, Lim. Act, purporting to follow a decision of this Court in Nidhiram v. Sarbeswar [1910] 14 C.W.N. 439. The questions referred to the Pull Bench are:

(1) Whether Article 132 applies to this case ; (2) Whether Nidhiram's case was rightly decided ; (3) Whether the suit is barred by limitation.

5. I think it necessary to make some preliminary observations as to the rights of the parties under the circumstances stated above, It seems to have been suggested that plaintiff's right has been affected in some manner as he did not redeem the defendant when he brought this suit. Under Order 34, Rule 1, Civil P.C. a puisne mortgagee may sue for sale without making a prior mortgagee a party to the suit. No doubt if he seeks to redeem a prior mortgagee in his suit for sale he may make the prior mortgagee a party and a complete decree may then be made as in Form No. 8, Appendix D, Civil P.C. But if a person is joined as a defendant for enforcement of the right on a mortgage he should be dismissed from the action as soon as he sets up a prior title : see Nilakant v. Suresh [1885] 12 Cal. 415. The fact that plaintiff's suit on his mortgage was dismissed as against defendant does not affect his right of redemption if it is not extinguished in any other manner.

6. When a puisne mortgagee is not made a party to a suit by the first mortgagee his rights are not affected by the decree or sale thereunder, and the puisne mortgagee has still the right to redeem the prior mortgage : Ram Narain v. Bandi [1904] 31 Cal. 737. He may notwithstanding the prior decree bring a suit on his mortgage: Debendra v. Ram Taran [1903] 30 Cal. 599. The rights of rival purchasers when the first mortgagee brings his suit without impleading the puisne mortgagee, obtains a decree against the mortgagor only and purchases the property himself and the mortgaged property is sold a second time at the instance of the puisne mortgagee and purchased by himself were considered in the case of Gopee Bandhu v. Kaleepudo Banerjee 23 W.R. 338. The purchaser under the first decree purchases the outstanding interest of the mortgagor only and the puisne mortgagee's rights are not affected in any way. It should be noted that in the present case the puisne mortgagee seeks to redeem as the purchaser of the equity of redemption and the suit of the plaintiff as against the mortgagor was properly constituted, for when he brought his suit the equity of redemption of the mortgagor had not passed away from him. There can be no question that the plaintiff would have the right to redeem if his suit is not barred by limitation.

7. Now I shall consider the question as to which article of the Limitation Act is applicable to this suit for redemption. Plaintiff's suit has been dismissed on the ground that Article 132 of the Act is applicable to this case. That article refers to a suit ' to enforce payment of money charged upon immovable property. ' In my judgment by no straining of language can a suit for redemption fall under that article, as it is not a suit to enforce payment of money. The special article applicable to a suit for redemption is Article 148, which gives 60 years as the period from the date when the right to redeem accrues, In this case the due date under the first mortgagee's bond is not in evidence but the suit was brought within 60 years of the date of the mortgage. So if this article is applicable there is no question that the suit is within time and is not barred by limitation.

8. But it is said that the case of Nidhiram v. Sarbeswar [1910] 14 C.W.N. 439 is authority for the proposition that Article 132 applies to this case. It seems to me that if the facts of that case are properly analyzed it would appear that the learnel Judges did not profess to lay down any such rule. There the suit on the first mortgage was brought on 28th March 1892 and the sale at which the mortgages purchased was hold on 21st March 1893. The puisne mortgagee was not made a party to the suit. The first mortgagee sold his interest to another person on 14th July 1893. The puisne mortgagee then brought his suit on 6th November 1891, that is to say, after the proceedings in the suit on the prior mertgage had been brought to an end, and himself purchased the property at the sale on 20th July 1895, without making the previous purchasers a party to the suit. In the result the owner of the equity of redemption not being impleadei the only right that was transferred by the decree of the puisne mortgagee and the sale thereunder was the right under the plaintiff's own mortgage. The second mortgages could no doubt bring a fresh suit against the owners of the equity of redemption to enforce his mortgage within the period of limitation, which suit would be governed by Article 132, Limitation Act. But he did not do so. He brought a suit after his right to enforce his mortgage was barred, for a declaration of his right to redeem the prior mortgage. The question which the learned Judges were asked to consider was, whether

the time within which the second mortgagee who has purchased the property in execution of a decree in a suit subsequently brought by him, to enforce his mortgage, or as in this case, his transferee, has to bring a suit, commences to run from the due data of the mortgage debt or from the date of his purchase.

9.They held, and in my opinion rightly that limitation to enforce his mortgage would run from the due date on the mortgage. The learnediJudge3 proceed to say:

The second mortgagee, by his purchase at the sale in satisfaction of his mortgage debt cannot acquire any right of redemption which, ho had not as mortgagee.

10. I think what they meant was, as the right to enforce the puisne mortgage was barred by limitation, the transferee from the mortgagee had no right in the property to enable him to redeem the prior mortgage. The same observation was made by the learned Chief Justice in his order of reference, with which I fully agree. It is unfortunate that the language used by the learned Judges in Nidhiram's case [1910] 14 C.W.N. 439 lends itself to misconstruction if dissociated from the facts of the ease. But I think they never meant to lay down a rule of limitation for an action to redeem which is not warranted by the provisions of the Limitation Act. It seems to me what they intended to say was that the plaintiff had no subsisting right to redeem.

11. I do not consider it necessary to elaborate the discussion but it seems to mo whenever a suit for redemption is brought by a person entitled to redeem against a mortgagee Article 148, Lim. Act, and no other article applies to it.

12. I have now only to refer to Fisher on Mortgages ( para. 1448 ) cited by the learned Judge who first tried the case in second appeal. The learned Chief Justice has pointed out the reason why in England the mortgagor is a necessary party to a suit by a puisne mortgagee to redeem the prior mortgagee. The 'cases cited in Fisher show that the reason of the rule that if a puisne mortgagee seeks to redeem he must foreclose all subordinate rights including the ultimate equity of redemption, is that the right to redeem of those persons would otherwise remain open, thus exposing the prior mortgageo to another suit. Where, as in this case, the puisne mortgagee has already obtained a decree on his mortgage, he is entitled to redeem a prior mortgage in a subsequent suit. The law in England is thus stated in Fisher on Mortgages para. 1693.

The second or other puisne mortgagee may foreclose those subsequent without joining those prior to themselves, for the latter can suffer no damage. The subsequent mortgagees, it is true, are left without the opportunity of redeeming all prior to them in the same suit.

13. The answers I propose to the questions put to us are:

(1) No. Article 148 is applicable.

(2) Nidhiram's case [1910] 14 C.W.N. 439 was rightly decided on its facts. If, however, it is supposed that it was decided in that case that a suit for redemption such as this is governed by Article 132, then it was wrongly decided.

(3) The suit is not barred by limitaion

14. The case has been referred to this Bench for final decision. But the suit having been dismissed on the ground of limitation the other issues raised in the case have not been decided by the Courts below, and no other question was argued before us. None of the parties, however examined any witness at the trial. The questions therefore which now require decision are covered by issues 4 and 5 and the case should be remitted to the trial Court for decision of those issues Reference may be made to the cases of Umesh Chander v. Zahur Fatima [1891] 18 Cal. 164, Sukhi v. Safdar Ghulam A.I.R. 1922 P.C. 11, Jnanendra v. Shorashi Charan A.I.R. 1922 Cal. 23, regarding the rights of the parties subsisting under their respective mortgages.

15. The defendant has claimed to redeem the plaintiff in his turn and his right to redeem the plaintiff would depend on the question as to the preferential right to the equity of redemption under the respective sales held under the decrees obtained by the parties on their mortgages. In deciding that question reference may be made to the following cases : Gopee Bandhu v. Kaleepada 23 W.R. 338 Dirgopal v. Bolaki [1880] 5 Cal. 269, Ram Narain v. Bandi [1904] 31 Cal. 737. If the defendant is held entitled to redeem he would be able to do so on payment of a proportionate part of the mortgage money chargeable on plot 1, as the plaintiff has himself purchased a portion of the property under his mortgage viz , plot 2. It would then be necessary to take evidence as to the respective value of the two plots. The case should be finally determined by the trial Court after taking into consideration all the circumstances.

16. The appellant must get his costs of the second appeal to this Court, of the Letters Patent Appeal and of this Reference.

Rankin, C.J.

17. I agree with the judgment of B.B. Ghose, J. and have only to make clear that the observations made by me in the order of reference are to be taken to be superseded by this judgment.

C.C. Ghose, J.

18. I agree with the judgment delivered by B.B. Ghose, J.

Buckland, J.

19. I also agree.

Mukerji, J.

20. I also agree.


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