Mahtha Raghubir Prasad vs Ramnath Singh and Others

Wort, Ag. C.J.

The appellant in this appeal is defendant 5 who was the purchaser of the property, the subject-matter of the mortgage, and it is immaterial for the purposes of this case to state whether the purchase was the result of the execution of a rent decree or a money decree for this reason. The plaintiff who is the respondent and the mortgagee made an application under Order 21, Rule 58. The result of that was that there was a certain application to the High Court and the High Court ordered that application to be heard on its merits with the result that it was ultimately dismissed, whether for default or not is again immaterial. The fact remains that the application by the mortgagee was dismissed. Then this action on the mortgage was brought more than one year after the disposal of the application under Order 21, Rule 58.

Now it is, of course, abundantly clear that so far as regards the mortgagor the plea is unavailable. But it is contended by defendant 5, who is the purchaser of the property, as I have already stated, that as regards himself the action is out of time. Mr. Roy on behalf of the respondent relies upon the Full Bench decision of this Court in Sunder Prasad Singh Vs. Deodhari Singh and Others, . There are certain observations in the course of the judgment of the late Chief Justice to the effect that Order 21, Rule 58, had no application to the facts of a case similar to the present. But I decline to hold that the decision of the Full Bench was that under no circumstances did Order 21, Rule 58, apply to the case of the relationship of the mortgagee and the purchaser, either of the equity of redemption or of the security. The real decision of the Full Bench is contained in the penultimate paragraph of the judgment in which the learned Chief Justice is reported to have said that the decision in Biswanath Patra Vs. Lingaraj Patra, was rightly decided, and then reference is made to Biswanath Patra Vs. Lingaraj Patra, p> 3. It will be seen that the opposite party in the application there was a usufructuary mortgagee which in my judgment makes a considerable and a substantial difference. If the contention of Mr. Roy is correct then Order 21, Rule 62 becomes a nullity. Order 21, Rule 62 runs as follows:

Where the Court is satisfied that the property is subject to a mortgage or charge in favour of some persons not in possession (words of great importance) and thinks fit to continue the attachment, it may do so, subject to such mortgage or charge.

It may be unnecessary for a purchaser to make an application under Order 21, Rule 58, but it is clear that Order 21, Rule 62, contemplates the possibility of such an application being made. If an application is made and it is unsuccessful, it seems to me that as regards those parties Order 21, Rule 62 applies and if a suit is brought beyond the period of one year, it must necessarily fail on the ground of the effluxion of time.

The decision of the learned Judge as regards the merits on the mortgage itself cannot be disturbed, but so far as defendant 5 is concerned, the appeal succeeds and defendant 5 is dismissed from the action with costs throughout.

Manohar Lall J.

As I understand the decision of the Pull Bench it only decides that the decision of this Court in Biswanath Patra v. Lingraj Patra A.I.R (1922) . Pat. 408 was correct. That case expressly referred, like the case in the Full Bench, to a usufructuary mortgagee. Further in the Full Bench case (as will be seen at p. 58 of 16 Pat) the rights of the mortgagee were not in jeopardy as is clear from the following sentence:

In this case the mortgagee was merely claiming in respect of his mortgage rights which were not threatened and the judgment-creditor could merely claim in respect of the right to put up for sale the equity of redemption: that is to say they were not fighting about the same property at all.

But in the present case I find from the judgment of the lower Appellate Court at page 10, line 18, that it was distinctly decided that the mortgage bond dated 25th September 1929 had no concern whatsoever with the execution case, that is to say plots Nos. 29 and 96 of Khata No. 13 of the mortgage bond in suit were outside the controversy and therefore could be sold by defendant 5. I therefore do not consider that the authority in Sunder Prasad Singh Vs. Deodhari Singh and Others, helps the respondent at all.

I agree that the appeal should be allowed and the rights acquired by defendants by virtue of his purchases will not be affected by the mortgage decree.