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Gobinda Proshad Misser Vs. Lukshmi Chunder Marwari and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.670
AppellantGobinda Proshad Misser
RespondentLukshmi Chunder Marwari and anr.
Excerpt:
mortgage - suit by puisne mortgagee--prior mortgagee made party--right of redemption of prior mortgagee. - .....to the lower appellate court was whether the plaintiff had, as alleged by him, satisfied the mortgage decree of kartik chobey and, if so, what sum was paid in satisfaction of that mortgage-decree. the court of first instance has found that the plaintiff has proved that he paid sixty-two rupees in satisfaction of that decree. the reasons given by the lower appellate court for differing from that finding do not appear to us to be good or sound and we cannot accept them. the question then arises: what order should be passed in this appeal. the plaintiff as puisne usufructuary mortgagee who had not been made a party to the suit brought by the first mortgagee to recover his mortgage debt by sale of the property now comes, after the sale in satisfaction of the decree of the first.....
Judgment:

1. This appeal comes before us on receipt of a finding from the lower appellate Court. The appeal was originally heard by Mr. Justice Doss who considered that a finding on a certain point was necessary and so remanded the case to the lower appellate Court for that finding. That finding has now been submitted

2. On behalf of the appellant an objection is taken to the finding of the Court of appeal below on the finding of the Court of first instance and it is contended that the finding of the Court of first instance was perfectly correct and that the finding of the Court of first appeal cannot be maintained. It is exceedingly difficult for us to understand on what grounds or materials the finding of the first appellate Court has been arrived at and the learned pleader for the respondent is unable to assist us on this point. The question which was referred to the lower appellate Court was whether the plaintiff had, as alleged by him, satisfied the mortgage decree of Kartik Chobey and, if so, what sum was paid in satisfaction of that mortgage-decree. The Court of first instance has found that the plaintiff has proved that he paid sixty-two rupees in satisfaction of that decree. The reasons given by the lower appellate Court for differing from that finding do not appear to us to be good or sound and we cannot accept them. The question then arises: what order should be passed in this appeal. The plaintiff as puisne usufructuary mortgagee who had not been made a party to the suit brought by the first mortgagee to recover his mortgage debt by sale of the property now comes, after the sale in satisfaction of the decree of the first mortgagee and the purchase of the property by him, to claim his right to redeem the first mortgage and to be re-placed in possession of the property as usufructuary mortgagee.

3. The learned Judge of this Court has held--and we see no reason to differ from that finding that the defendant as prior mortgagee who has purchased the property at a sale in satisfaction of his first mortgage has taken the place of the original mortgagor and that, as such, he is entitled in this suit to be allowed to pay off the mortgage dues of the plaintiff and that, if he fails to pay those dues, then the plaintiff, not having been made a party to the suit brought by the first mortgagee, is entitled to claim his rights to redeem the first mortgage and to be re-placed in possession of the property as usufructuary mortgagee, or, if he wishes; to have the property sold in satisfaction of his debt. It appears further that the plaintiff has paid off the decree obtained by the mortgagee whose mortgage was prior in date to that of the defendant and the learned Judge has held that the plaintiff is entitled to be paid that sum with interest by the defendant, if the defendant wishes to prevent the plaintiff from pursuing his remedy or relief by redeeming the first mortgage for the purpose of either recovering possession of the property or selling it. On these findings we think that the following directions should be passed in disposing of this appeal. We direct that a decree be drawn up to the following effect: If the defendant does not within three months from this date satisfy the mortgage-debt of the plaintiff with interest at the rate mentioned in the bond from the date when the plaintiff was dispossessed from the property up to the date of payment and if he does not within the time aforesaid also pay to the plaintiff the sum of Rs. 62 which the plaintiff paid to satisfy the prior mortgage decree of Kartik Chobey with interest at 12 per cent. per annum on that sum from the date of payment up to the date of realization, then the plaintiff will be entitled to have an account taken in order to ascertain what was the sum due to the defendant on his mortgage with interest up to the date of delivery of possession after the sale in satisfaction of his decree, and to redeem the mortgage of the defendant by payment of that sum within three months and to recover possession of the property as usufructuary mortgagee or to sell the property in satisfaction of his own mortgage decree. If, on the other hand, the defendant pays up within three months to the plaintiff the sums stated above, then the plaintiff's right to redeem the first mortgage will be barred. If again the plaintiff fails, within three months from the service on him of the account showing the amount due to the defendant, to redeem the first mortgage of the defendant by payment of that sum, then the plaintiff's right to redeem will be barred. The appeal is decreed on these findings. The plaintiff is entitled to his costs in this appeal. We make no order as to the costs of the lower Courts.


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