Arjun Das and Others vs Dwarka Prasad Singh and Others

Mullick, Ag. C.J.

This is a petition of appeal to His Majesty in counsel by the plaintiffs, arising out of suit No. 157 of 1922.

The plaintiffs sued for the enforcement of a mortgage claim amounting to Rs. 36,997-13-3 against several properties, of which property 12 alone is material for our present purposes.

Some of the first party defendants contested the suit and denied that the karta of their joint family had executed the bond for consideration.

Defendants 14 and 23 to 30, who were second party defendants, claimed to be subsequent mortgagees of plot 12 and denied that it was covered by the plaintiffs'' mortgage.

The trial Court found against the second party defendants and made a decree directing that the mortgaged properties including plot 12 should be sold on failure to redeem within the time of grace.

In appeal to the High Court, the second party defendants succeeded and a Division Bench held that property 12 was not included in the plaintiff''s mortgage The plaintiffs are now the appellants to England.

The appeal is confined to plot 12, and the question is whether the subject-matter of the appeal is of the value of Rs. 10,000, otherwise the appeal does not comply with the provisions of section 110, Civil P.C.

The second party defendants valued their appeal to the High Court at Rs. 9,000 but in the present proceedings for leave to appeal to His Majesty, the plaintiffs alleged that the property had been undervalued and that its real value was more than Rs. 10,000 and the Court directed an inquiry by the Subordinate Judge into the value of the property. A commission was issued by the Subordinate Judge and certain crop-cutting experiments were made upon the land in dispute. Evidence was also taken on behalf of both parties and the Subordinate Judge has finally reported that the value of the property is not more than Rs. 9,000.

This finding, if affirmed, would seem to be conclusive as regards the appeal to His Majesty in Council, but the learned advocate for the appellants now submits that the market value of the property is immaterial and that the value of the subject-matter in dispute is the whole mortgage claim which is over Rs. 10,000 and chat the decision of the High Court being one of reversal the appeal complies with the provisions of Section 110.

Now the subject-matter in dispute in the appeal is an interest in the property 12. The respondents claim an interest as mortgagees and contend that it is free of the mortgage of the plaintiffs. The plaintiffs claim that they are prior mortgagees and that the respondents are liable to redeem this prior mortgage. If the plaintiffs succeed in their appeal, the respondents will be compelled, if they wish to keep the property, to pay up the whole of the mortgage claim, for the claim is indivisible and each of the mortgaged properties is charged with the whole debt. The dispute, therefore, involves a right on the one hand and a liability on the other in respect of a sum exceeding Rs. 10,000. The subject-matter in dispute is really the whole debt.

I think, therefore, that the value of the mortgaged property 12 is immaterial and the appellants have satisfied the conditions of Section 110, Civil P.C. Sayeruddin Akonda Vs. Samiruddin Akond and Another, is authority for the view which we have taken.

On the other hand, the respondents rely on Radha Kunwar v. Reoti Singh AIR 1916 P.C. 18. In that case a mortgagee brought a suit against the mortgagor and also against a third party who claimed not under the mortgagor, but under a title paramount derived from one Hukum Singh who claimed adversely to the mortgagor. The defence of the third party succeeded as to half the property claimed by her. The plaintiffs preferred an appeal to His Majesty in Council and leave was granted by the High Court of Allahabad. The third party then appealed to the Privy council and it was held that all that was in dispute in the appeal was the half-share claimed by the third party, and its value being below Rs. 10,000 the appeal to His Majesty in Council was not competent. It was observed by their Lordships of the Judicial Committee that the third party was not claiming under the mortgagor and that in any event she had no right to redeem and was not in the least interested in the amount of the mortgage. It was further pointed out that as the third party was not claiming under the mortgagor and had no interest in the equity of redemption, she ought not to have been joined in the suit.

The case now before us is of a totally different character. Hare the second party defendants, if the plaintiffs succeed in the Privy Council, will be called upon to redeem property 12 by paying the full mortgage claim.

Their position is wholly different from that of the third party in Radha, Kunwar''s case AIR 1916 P.C. Manley v. Palache [1896] 73 L.T. 98 is also cited by the appellants, but does not seam to be of any assistance.

In my opinion the case complies with the provisions of Section 110, Civil P.C., and the appellants are entitled to a certificate and also to the costs of this hearing. Hearing fee, 5 gold mohurs.

Wort, J.

I agree.