Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Kumar Birendra Nath Roy Bahadur vs Tarini Kanta Roy And Anr. on 15 June, 1927
Equivalent citations: AIR 1928 Cal 191
Author: Page


Page, J.

1. This is an appeal from an order of the learned Subordinate Judge of Rajshahi allowing the opposite party’s objection to certain properties being attached in execution of a decree, and ordering the properties to be released from attachment. Defendants 1 and 2 mortgaged some properties including the property in suit to defendant 6 on 19th May 1912, On 26th January 1914 the appellant purchased the properties set out in schedule Ka in execution of a money decree against defendants 1 and 2. A mortgage suit was then brought by the mortgagee to enforce his mortgage and some other property belonging to the mortgagors and subject to the mortgage was sold in execution of the mortgage decree. The appellant as the auction-purchaser of part of the property mortgaged comprised in schedule Ka, was anxious to save the property still unsold from being put up to auction in execution of the mortgage decree, and on 19th September 1916 deposited in Court the full amount remaining due under the mortgage decree. Thereupon the properties still unsold which had been subject to the mortgage were freed from liability to attachment under the mortgage decree. Now, pursuant to the rights given to him under Section 95, T.P. Act, the appellant brought a suit to obtain contribution from the other owners of the mortgaged property freed from liability to the mortgagee. That suit was numbered 510 of 1919.

2. On 21st January 1921 the contesting respondent to this appeal one Tarini Kanta Roy purchased Sarat Sundari Debi defendant l’s 1/3rd share of property No. 2 in Schedule Ka. On 27th July 1923 a decree was passed in the contribution suit, and in order to obtain execution of that decree an application was presented by the appellant in respect of which the present appeal arises. The application was for leave to execute the decree by selling the properties of the other owners to the extent to which under the decree they were proportionately liable to contribution. One of those properties was the 1/3rd share of property No. 2 of Schedule Ga which belonged to Sarat Sundari, and which had been purchased by Tarini. Tarini objected to execution being levied in respect of the property which he had bought from Sarat Sundari, and his objection was upheld by the order against which the present appeal is preferred. Tarini based his objection to execution being levied upon the share in the property mortgaged that he had bought from Sarat Sundari upon three grounds. The learned vakil who appeared for the respondents urged that in the circumstances disclosed in the evidence the Court ought to hold, whatever the legal position might be, that the appellant must be taken to have released the property in dispute from any liability to contribute towards the liquidation of the mortgage debt and the learned vakil, while admitting that the release did not amount to an estoppel, claimed that it must be held that the appellant had forgone any right which he might have had to obtain contribution from Tarini’s property. In my opinion, there is no substance in this contention as will be seen as soon as the relevant facts are stated. It appears that the appellant was the holder of an interest in a jote under which the property was held a share of which was purchased by Tarini, and after Tarini’s purchase on 21st January 1921 Tarini went to his landlord, that is the appellant and asked him if he would allow mutation of names in his Sherista. It was agreed that there should be mutation of names in the Sherista upon Tarini paying a Selami of Rs. 200 and four years’ arrears of rent.

3. It is in those circumstances that the learned vakil contended that the Court ought to hold that the appellant had agreed to forgo any right that he might have in respect of any other charge upon the property. It is quite obvious that no such inference reasonably can be drawn. Tarini purchased the share belonging to Sarat Sundari with full knowledge of all the facts, for he was a party to the contribution suit, and whether there was a charge or whether there was not a charge as alleged upon this property it was necessary that Tarini should obtain a mutation of names in the Sherista. There was no evidence whatever to support the contention that it was made a term of Tarini assenting to become a tenant and to pay the sums that I have mentioned that any other charge upon the property which the appellant might have should be released. That contention, therefore, fails.

4. The learned vakil further urged that the appellant was in a dilemma. Either the decree in the contribution suit was a personal decree against the parties against whom the decree was made, or it was a decree granting a charge upon the property for the amount for which the property was held liable to contribute, If it was merely a personal decree against the defendants the property of the objector could not be attached in execution. If it was a decree imposing a charge upon the property and not merely for money, then, it could not be enforced by way of sale in the present suit, but must be made the subject of a second suit. The ground upon which this contention was based was that under Order 34, Rules 14 and 15, it was clear that the legislature intended that before the mortgaged property was brought to sale the mortgagor, or mortgagors if there were more than one, should have an opportunity of redeeming the property before it passed by way of sale out of the hands of its former owner, and the learned vakil in this connexion referred to two cases : Abhoyessury Dabee v. Gouri Sunkar Panday [1895] 22 Cal. 859 and Gobind Chandra Pal v. Kailash Chandra Pal [1916] 25 C.L.J. 354. The learned vakil for the appellant has contended that there is a difference between a suit upon a mortgage which had developed in the present proceedings and a suit upon a charge not amounting to a mortgage, which was the case in each of the two authorities to which the learned vakil referred.

5. Where a suit is brought against several co-obligors upon a bond for the purpose of obtaining a declaration that there was-a charge upon the property secured by the bond no doubt an opportunity should be given to the co-obligors to redeem the debt secured by the bond, and so to release the property. But in the present case the ratio upon which it has been held in the decisions referred to above that it is-incumbent to bring a separate suit is absent, for in the present case a mortgage suit was brought, and in that mortgage suit the co-mortgagors were each of them in a position in which if they elected to-do so, they could redeem the mortgaged property by paying the mortgage debt. The predecessor of Tarini, to the extent to which she was at mortgagor of the interest purchased by Tarini although she had the opportunity to do so, elected not to redeem the property.

6. This opportunity having been given to the mortgagors and the appellant alone having availed himself of the chance of redemption open to all the co-mortgagors now brings a suit for contribution, and, assuming that the decree was not a mere personal decree for money against the defendants, but also declared a proportionate charge which attached to the several properties, in my opinion, the two cases upon which the learned vakil for the respondents relied are inapplicable. The third contention raised on behalf of the respondents, therefore, becomes material, namely, was this decree a mere money decree, or was it also a decree under which the several properties were proportionately charged with the amounts due for contribution? The plaint in the suit has not been printed in the paper-book, but reference has been made to it and it does not appear from the plaint (so far as we are in a position to understand it), that any specific claim was made that a charge should be laid upon the properties liable to contribution.

7. But in order to enable us to understand the decree we have been referred to the judgment in the suit which is in the printed paper-book, and, in my opinion, it is clear beyond doubt or controversy that the decree in the contribution suit did impose not merely a personal obligation upon the defendants against whom the decree was passed, but also a proportionate charge upon the properties liable to contribution. It is enough to say that in more passages than one the learned Subordinate Judge emphasizes the importance of bearing in mind that
the liability attaches to the property and not to the person, and, as the mortgage charge is indivisible and attaches to the property, every person who holds the property must contribute.

8. In dealing with issue 12, which relates to the relief to which the plaintiff is entitled, the learned Subordinate Judge specifically states that there is to be a charge upon the properties, and he takes the opportunity of specifically laying down the contribution chargeable to each of the several properties liable to contribute. The decree recites what the plaintiff’s claim is, and after stating in detail the several sums which the plaintiff claims as payable by the owners of the several properties respectively proceeds to state that the plaintiff reserved a lien for the said sums on the respective properties set out in the schedule and held by the defendants. Coming to the operative part of the decree, “it is ordered and decreed that this suit be decreed with costs,” and although no special reference is made to the word “charge,” it is, to my mind, abundantly clear that the learned Judge by this decree declared and imposed a proportionate charge upon the property liable to contribution to be paid by each of the properties respectively. It follows, therefore, in my judgment, that the application for execution was well-founded, and that the objection of Tarini was misconceived. The order will be that the order of the learned Subordinate Judge be discharged that the objection of the respondent Tarini be dismissed, and that the application of the plaintiff-appellant for leave to issue execution be granted. The appeal, therefore, in this sense will be allowed with costs in both the Courts- the hearing-fee in this Court being assessed at three gold mohurs. The application is dismissed without costs.

Graham, J.

9. I agree.

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