Mahabir Singh And Anr. vs Saira Bibi And Anr. on 17 April, 1895

Allahabad High Court
Mahabir Singh And Anr. vs Saira Bibi And Anr. on 17 April, 1895
Equivalent citations: (1895) ILR 17 All 520
Bench: J Edge, Kt., Banerji


John Edge, Kt., C.J. and Banerji, J.

1. The plaintiffs in the suit in which this appeal has arisen were usufructuary mortgagees under a mortgage of the 19th of June 1883, which had been made in their favor by the defendants in the suit or by those under whom they claimed. The plaintiffs had been kept out of possession of the mortgaged property, and were obliged to bring a suit for possession. They brought a suit claiming not only possession, but also mesne profits, and on the 30th of January 1889, they obtained a decree for possession, for mesne profits and for costs. The plaintiffs-mortgagees were put in possession under the usufructuary mortgage of the 19th of June 1883, in pursuance of the decree of 30th of January 1889, They then sought to attach for the purpose of bringing to sale the mortgaged property in satisfaction of that part of their decree of the 30th of January 1889 which decreed them mesne profits and costs. The Subordinate Judge before whom the application for attachment was made dismissed the application, holding that Section 99 of Act No. IV of 1882 barred the plaintiffs’ claim to execute their decree by the sale of the mortgaged property. That order was confirmed on appeal by this Court and, after the decision of this Court in appeal, the plaintiffs brought the suit out of which this appeal has arisen. In this suit they asked for a decree for sale of the equity of redemption maintaining the rights and interests of the plaintiffs as mortgagees. The Subordinate Judge dismissed the suit, holding that by reason of Sections 99 and 66 of Act No. IV of 1882 the suit did not lie. The plaintiffs brought this appeal from that decree.

2. Section 99 was enacted with the object of preventing a mortgagee bringing the mortgaged property to sale except in pursuance of a decree obtained in a suit allowed by Section 67. Prior to the passing of Act No. IV of 1882 it was the constant custom of mortgagees to obtain, on other causes of action than their mortgages, decrees for money against the mortgagor, to bring the mortgaged property to sale in execution of those money decrees, and to have it sold, reserving their rights as mortgagees. The result of that was that in such cases, the sale being notified as one in which the property to be sold was subject to a mortgage, purchasers would not come forward to run the risk of harassing litigation with the mortgagee in future suits, and the mortgagee or his benamidar was left in possession of the field, and in too many instances purchased the mortgagor’s interest in the property for a mere song, and having got by such sale the mortgagor’s interest for practically a trifling price, the mortgagee got the whole property into his hands. It was found from experience that the result of such a state of things was that the properties passed out of the hands of mortgagors into the hands of mortgagees in many cases for far less than their value, counting the mortgage-debt and the price paid at the sale under the money decree together. It was also found that such a state of things encouraged litigation, and it was to provide a remedy and to prevent the recurrence of such a state of things that Section 99 was enacted. It has been contended that in such cases the plaintiffs are placed in a difficult position. They are not entitled to bring a suit for sale under Section 67 on their mortgage, the mortgage being usufructuary, and it is suggested that by the time when they cease to be mortgagees, when Section 99 would cease to operate, their decree for money might he barred by limitation.

3. There may be in such cases individual hardships, but the law must have regard to the benefit of the greater number, and not to the particular benefit of persons in individual cases seldom occurring. There was nothing to prevent the respondents executing their decree of the 30th of January 1889, against property of their judgment-debtors other than the property the subject of the mortgage of the 19th of June 1883. We need not decide whether, the plaintiffs have now a remedy against the property of their judgment-debtors other than the mortgaged property.

4. This suit in fact was brought not in accordance with the intention of the Legislature as announced in Section 99 of Act No. IV of 1882, but in contravention of the provisions of that section. We are supported in the view which we take by the decision of this Court in Azim-ullah v. Najm-un-nissa I.L.R. 16 All. 415, and the decision in Jadub Lall Shaw Choudhry v. Madub Lall Shaw Chowdhry I.L.R. 21 Cal. 34.

5. We dismiss this appeal with costs.

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