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Allahabad High Court
Suba Lal And Ors. vs Akhara Panchaiti Through Hira Gir … on 24 October, 1895
Equivalent citations: (1896) ILR 18 All 83
Bench: J Edge, Kt., Banerji


JUDGMENT

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

1. This appeal has arisen out of a suit for sale brought under Act No. IV of 1882, on a simple mortgage. The appellants usufructuary mortgage, the period of which will not expire until 1302 Fasli The Subordinate Judge gave the plaintiffs a decree for sale, holding that the decision of this Court in Mata Din Kasodhan v. Kazim Husain I.L.R. 13 All. 432, did not apply, and that it could not apply, as the prior mortgages were usufructuary mortgages the period of whose mortgage had not expired when this suit was brought. The Subordinate Judge made a decree for sale subject to the prior mortgage. From that decree this appeal has been brought.

2. It has been contended on behalf of the plaintiffs-respondents that the decision in Mata Din Kasodhan v. Kazim Husain does not govern this case, until the expiration of the usufructuary mortagage, it being suggested that case might occur in which, if the decision in Mata Din Kasodhan v. Kazim Husain were applied to a suit by a subsequent mortgagee where the prior mortgage was a usufructuary one, the subsequent mortgagee might by reason of limitation be prevented from availing himself of the benefits of Section 90 of Act No. IV of 1882, in case his decree for sale when obtained and executed did not satisfy the subsequent mortgage.

3. In our opinion the decision of the majority of the Court in Mata Din Kasodhan v. Kazim Husain governs this case, and that case appears to us to have decided that a decree for sale under Act No. IV. 1882 cannot be merely a decree for sale of what is known in England as the equity of redemption but must be a decree for sale of the mortgaged property itself. Further, it appears to us that it would be impossible for the Legislature to protect persons willing to lend their money on inadequate security from loss either by the security being inadequate or being hampered by prior mortgages which might cause a suit by a subsequent mortgagee to be barred by limitation. In the present case the plaintiffs brought their suit before the time when they could in it ask for redemption of the usufructuary mortgage. In other words their in it ask for redemption of the usufructuary mortgage. In other words their suit was premature. Following Mata Din Kasodhan v. Kazim Husain and on the ground that the plaintiffs present suit has been prematurely brought, we allow this appeal and dismiss the plaintiffs suit with costs in all Courts.


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