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Dudali Uayal and anr. Vs. Belo Bibi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in54Ind.Cas.806
AppellantDudali Uayal and anr.
RespondentBelo Bibi and ors.
Cases ReferredPriya Sakhi Debi v. Bireshwar Samanta
Excerpt:
mortgage, suit to enforoe, against mortgagor and purchaser of equity of redemption - mortgagor, power of, to transfer interest, whether can be gone into--procedure. - .....february 1917, affirming the decision of the munsif at diamond harbour. the plaintiffs brought the suit to enforce a mortgage, the defendants being the mortgagors and persons who were, or were supposed to be, the owners of the equity of redemption. the defendant no. 4, who apparently according to the plaintiffs' case was added or made a defend-ant on the ground that he was a purchaser of the equity of redemption, turned out during the course of the proceedings to be the landlord and he set up the case that the mortgagors had no interest which they could mortgage to the plaintiffs. the learned judge in the lower appellate court agreeing with the court -of first instance held that, although the mortgage was proved and the consideration had been duly paid the plaintiffs were not entitled to.....
Judgment:

Ernest Fletcher, J.

1. This is an appeal preferred by the plaintiffs against the decision of the learned Additional District Judge of the 24-Pergannahs dated the 7th February 1917, affirming the decision of the Munsif at Diamond Harbour. The plaintiffs brought the suit to enforce a mortgage, the defendants being the mortgagors and persons who were, or were supposed to be, the owners of the equity of redemption. The defendant No. 4, who apparently according to the plaintiffs' case was added or made a defend-ant on the ground that he was a purchaser of the equity of redemption, turned out during the course of the proceedings to be the landlord and he set up the case that the mortgagors had no interest which they could mortgage to the plaintiffs. The learned Judge in the lower Appellate Court agreeing with the Court -of first instance held that, although the mortgage was proved and the consideration had been duly paid the plaintiffs were not entitled to enforce the security on the ground that the mortgagors had not a transferable interest. Prima facie such a question ought not to be entered into in an ordinary suit to enforce a mortgage The sole question in such a case is whether the Court should enforce the security as regards the right, title and interest of the mortgagors, and the case whether the mortgagors had a good interest to transfer to the mortgagees, or not is not a matter that ought to be gone into in a suit of this nature Reliance was placed by the learned Judge of the lower Appellate Court on the decision of this Court in the case of Priya Sakhi Debi v. Bireshwar Samanta 37 Ind. Cas. 277 : 21 C.W.N. 177 : 44 C. 425 : 27 C.L.J. 212 but that case is a very different case from the present one and the learned Judges in that case nowhere suggested that the course adopted in that case was one that ought to be adhered to in all cases. What they said was that the parties might by their conduct raise the question of title of a third party, but, having done so, they could not, at a later stage of the proceedings, question the course that had been adopted by the learned Judge with reference to that matter which prima facie ought not to have been raised or gone into in that suit. I think in a case like this, as in the majority of cases, the matter ought to be confined to what is the proper question in a mortgage suit, namely, whether the plaintiff is entitled to ask the Court to enforce the security. All questions of title either of the mortgagor or of anybody else are matters to be enquired into in other judicial proceedings. I think we ought to set aside the decision of the learned Additional District Judge and in lieu thereof declare that the mortgage-bond ought to be enforced in accordance with the terms of the law and remit the case to the Court of first instance to give effect to the above directions. The appellants are entitled to add their costs in all Courts to their mortgage security.

Coming, J.

2. I agree.


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