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Shananda Chandra Pal and ors. Vs. Sri Nath Roy Chowdhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in17Ind.Cas.432
AppellantShananda Chandra Pal and ors.
RespondentSri Nath Roy Chowdhury and ors.
Cases ReferredMoti Lal v. Karrab
Excerpt:
transfer of property act (iv of 1882), section 85 - civil procedure code (act v of 1908), order xxxiv, rule 1--mortgage suit--joinder of party--person having right to redeem, whether necessary party under section 85--creditor of mortgagor attaching mortgaged property in execution of money-decree, whether to be joined as party in mortgage suit. - .....or have been taken in this second appeal, the first point arises out of the contention that the attaching creditor in a money suit, the attachment taking place on the 13th may 1895, was a necessary party to the mortgage suit which was instituted on the 16th july 1896. that he had the right to redeem as long as he was the attaching creditor is clear from section 91 of the transfer of property act, and that he would be a necessary party under the new code of civil procedure is clear from order xxxiv, rule 1. but that is not sufficient to decide the case.2. the learned vakil for the appellants has urged, on the authority of the judgment of mr. justice banerjee in the case of ghulam husain v. dina nath 23 a. 467 at p. 470 that the benefit of the charge acquired by the attachment enures in.....
Judgment:

1. Two points arise or have been taken in this second appeal, the first point arises out of the contention that the attaching creditor in a money suit, the attachment taking place on the 13th May 1895, was a necessary party to the mortgage suit which was instituted on the 16th July 1896. That he had the right to redeem as long as he was the attaching creditor is clear from Section 91 of the Transfer of Property Act, and that he would be a necessary party under the new Code of Civil Procedure is clear from Order XXXIV, Rule 1. But that is not sufficient to decide the case.

2. The learned Vakil for the appellants has urged, on the authority of the judgment of Mr. Justice Banerjee in the case of Ghulam Husain v. Dina Nath 23 A. 467 at p. 470 that the benefit of the charge acquired by the attachment enures in favour of the person who purchased the property at a Court sale under a money-decree. Mr. Justice Banerjee says that in a case of ordinary mortgage, this is beyond doubt and in his Court no suggestion was made why the same rule should not be applied in the case of a charge of this description. Mr. Justice Aikman, who was sitting with him, did not support this view, but preferred to base his decision on the short ground that the respondent in that appeal had transgressed the law, had rushed the mortgage through and had not given the attaching creditor an opportunity to redeem, to which he was entitled while he was an attaching creditor. Now, in this case, there can be no doubt that had the attaching creditor offered to redeem while he was an attaching creditor, he could have done so. But the authority of this Court in the case of Frederick Peacock v. Madan Gopal 29 C. 428 : 6 C.W.N. 577 decided by a Full Bench and following the Judicial Committee in the case of Moti Lal v. Karrab-ul-din 25 C. 179 : 24 I.A. 170 : 1 C.W.N. 639 is perfectly clear that the attachment only prevents alienation; it does not confer any title. The Full Bench, therefore, held that it must be taken that the attaching creditor did not obtain by his attachment any charge or lien upon the attached property, and, therefore, a fortiori he cannot hand on any such charge to the purchaser at auction. This distinction does not appear to have been put before the learned Judges of the Allahabad Court, and we are bound to follow the decision of the Full Bench and it entirely accords with our own view of what the law was prior to the passing of the new Code of Civil Procedure. We, therefore, think that this ground of appeal fails. We may further point out that the respondents in the appeal purchased only one of the mortgaged properties and the appellant wants to redeem this one piecemeal having never offered to redeem the whole.

3. The second point that was argued was, that certain shares were sold without defining the amounts of the shares. The first Court, therefore, gave a decree for joint possession on the ground that these shares were unascertainable; but the lower Appellate Court held that there was sufficient evidence of what these shares were and, therefore, gave a specific decree for a particular share. This is obviously a question of fact, and it is concluded by the findings of the lower Appellate Courts If the first Court thought the evidence was not sufficient and the Appellate Court thought it was, the finding of fact of the lower Appellate Court must prevail. This is not a point which can be taken in second appeal.

4. The result is, that the appeal fails on all the grounds taken and must be dismissed with costs.


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