Duma sahu and Others vs Jeoynarayan Lal and Others

Mitter, J.—This was a suit instituted by the plaintiff, now special appellant before as, for the enforcement of a mortgage-lien, bearing date the 13th October 1863. The defendant, special respondent, pleaded that the mortgage was a collusive transaction; that he, the defendant, had obtained a mokurrari lease of the property in question from the ancestor of the alleged mortgagor long previous to the date of the mortgage; and that in execution of a decree obtained by him against the mortgagor, the right, title, and interest of the mortgagor was put up to sale, and purchased by him, the defendant, in the year 1867. The Court of first instance gave a decree to the plaintiff : but on appeal the decision of that Court has been reversed by the Subordinate Judge.

In special appeal two objections have been taken before us, namely, first, that the decision of the Moonsiff of Chuprah, bearing date the 18th July 1866, and that of the Judge of the same district, bearing date the 6th of October of that year, have been improperly admitted in evidence for the purpose of showing that the defendant had obtained a mokurrari lease of the property in question long previous to the mortgage created in favour of the plaintiff; and, second, that the lower appellate Court is under any circumstances in error in holding that the purchase of the proprietary right of the mortgagor made by the defendant in the year 1867, is a valid purchase so far as the plaintiffs'' mortgage is concerned.

We are of opinion that both these objections are valid. With reference to the first point, it is admitted that the decisions of the 18th July and 6th October 1866 were passed in a suit, which was instituted long after the date of the plaintiffs'' mortgage; and the plaintiff, who was not a party to that suit, cannot therefore be bound by any decision which was passed in that case.

The second objection is also good. The purchase of the right, title, and interest of the mortgagor in the year 1867, which was four years after the date of the plaintiffs'' mortgage, cannot deprive the plaintiff of his right to enforce his mortgage-lien.

The pleader for the special respondents raised several objections in cross-appeal; but we think it necessary to notice two of them only, The first objection was that the petition of the 13th October 1863 is not legally sufficient to create a mortgage in favour of the plaintiff; and, secondly, that the plaintiff having obtained a money-decree, and that decree containing no provision whatever regarding the hypothecation of the property in dispute, be (the plaintiff) is no longer in a position to institute this action for the enforcement of his mortgage-lieu. Both these objections appear to us to be perfectly groundless. With reference to the petition of the 13th October 1863, we Sod that it was an instrument executed by the mortgagor, with the consent of the mortgagee, and it contains a clause by which the on the face of the petition, it appeared that the parties intended to create a new right, and that it was the intention of the debtor to pledge, and he did in terms pledge property not comprised in the attaching order, in respect of the newly-created right, it may well be that the petition may have had some such effect. We understand from the statement of the pleader that such was the effect of the petition in the case above mentioned. There are other facts necessary, which it would be necessary to consider before we could give the plaintiff a decree. First--If the petition created any lien, whether the present plaintiff is in a position to set it up. Secondly--Whether the payment was not voluntary. We should have to consider what was the effect of striking off the case, and whether any Bale could have taken place under the attachment as it subsisted in December 1864. We do not consider it necessary to go into these points. It is plain that the plaintiff had no right or title whatever as against the mortgage of Ramtanu Ghose, and that is sufficient for the dismissal of the special appeal. We dismiss the appeal with costs.