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Calcutta High Court
Cally Nath Bundopadhya vs Koonjo Behary Shaha And Ors. on 7 March, 1883
Equivalent citations: (1883) ILR 9 Cal 651
Author: Wilson
Bench: Wilson, Maclean


JUDGMENT

Wilson, J.

1. The facts found in this case are as follows:

2. The disputed property was mortgaged to the plaintiff and the father of defendants 4 and 5 in Pous 1273 (December 1866). They obtained a summary decree under the Registration Act XX of 1866 in May 1868.

3. The property was again mortgaged to defendants 1 and 2 in March 1869. They sued on their mortgage-bond, obtained a decree, sold the property in execution, and bought it themselves in December 1874.

4. The plaintiff now sues the first and second defendants to enforce his share of the mortgage-debt against the property in their hands, joining the fourth and fifth defendants as the representatives of his co-mortgagee.

5. The District Judge affirming the Munsif has dismissed the suit on two grounds:

6. First, he has held that the plaintiff’s suit is improperly framed, and that he cannot sue; for his share of the mortgage-debt. We think it very doubtful whether, on the construction of the mortgage-deed, this is so, whether the transaction was not several rather than joint; but it is not necessary to decide this.

7. The District Judge has held, secondly, that the plaintiff had exhausted his remedies in the former suit, and cannot sue again. This proposition is, we think, too broadly stated. The law applicable to the matter depends upon the effect of two Full Bench decisions, both of which are binding upon us.

8. In Syud Emam Mumtazooddeen Mahomed v. Raj Coomar Dass I.L.R. 7 Cal.714: s. c. 9 C.L.R. 353 a mortgagee, who had obtained a summary decree under the Registration Act XX of 1866, afterwards brought a suit to enforce his lien upon the mortgaged property in the hands of the mortgagor. The Court, having pointed out that the effect of the summary decree was the same as that of a money-decree in an ordinary mortgage-suit, held that the plaintiff had not, by obtaining a personal decree, forfeited his lien upon the land, but that he must enforce it in execution, and could not maintain a suit for the purpose.

9. In Jonmenjoy Mullick v. Dossmoney Dossee I.L.R. 7 Cal. 714: s. c. 9 C.L.R. 353 the plaintiff had obtained a money-decree against his mortgagor. After the decree the mortgagor sold the mortgaged property, and it was held that the plaintiff might enforce his lien by suit against the property in the hands of the purchasers.

10. These two cases establish that there is a difference in the procedure applicable between the case where the property is still in the hands of the mortgagor and the case where it has passed to a purchaser, the lien being enforcible, in the one case by execution, in the other by suit.

11. But we do not see how the right can be more extensive in the one case than in the other.

12. It would be contrary to ordinary principles, we think, to hold that the mortgagee acquires a greater right by reason of the mortgagor’s alienation, and that the purchaser takes subject to a greater burden than the debtor himself.

13. In the present case, the plaintiff has allowed his decree against the debtor to be long since barred by limitation, and has therefore lost all right to proceed by execution against the property in the hands of his debtor. We think he has no better right to proceed by suit against the property in the hands of the purchaser.

14. The appeal is dismissed with costs.


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