Mohammad Tabarak Ali Khan vs Dalip Narain Singh and Others

Mullick, Ag. C.J.

This is an application for leave to appeal to His Majesty in Council by Khaja Mohammad Tabarak Ali Khan, one of the defendants in suit No. 79 of 1921 in the Court of the Subordinate Judge of Monghyr by whom the suit was decreed. An appeal against that decree was numbered 274 of 1922 and was dismissed by a Division Bench of this Court on 28th June 1926. Muhammad Tabarak Ali Khan Vs. Dalip Narain Singh Bahadur and Others, .

One of the questions in the present application is whether the decision of the High Court was one of affirmance or reversal.

The facts of the suit were as follows:

On the 22nd December 1915, Mt. Mukmi Begum, the mother of the appellant, jointly with her four other sons Lutf Ali, Yavar Ali, Davar Ali and Amir Hussain, executed a mortgage-bond in favour of Rai Bahadur Baijnath Goenka for a sum of Rs. 1,35,000. For some reason the appellant Tabarak Ali was not a party to the transaction.

On the 10th February 1916, Amir Hussain borrowed Rs. 50,000 from the respondent Rai Bahadur Dalip Narayan Singh, mortgaging his one-anna 11-dams share in the properties which were the subject-matter of the transaction of the 22nd December 1915, and also certain other properties. Subsequently Amir Hussain conveyed his equity of redemption to Mahadeo Lal Marwari.

On the same day, i.e., the 10th February 1916, three other mortgages were executed in favour of the respondent by Lutf Ali, Yavar Ali and Davar Ali on the security of their respective shares in the properties covered by the prior bond for the sums of Rs. 30,000, Rs. 16,000 and Rs. 10,000.

On the 10th June 1918, the respondent, for his own protection, paid off the mortgage of the 22nd December 1915, and, claiming to be subrogated to the position of Rai Bahadur Baijnath Goenka, he brought a suit (No. 79 of 1921) to enforce the mortgage of the 22nd December 1915, Tabarak Ali''s appeal against the decree in that suit was numbered 274 of 1922 and that of his other brothers numbered 282. Tabarak Ali''s presence in this suit was due to his having been impleaded as the legal representative of Mukmi Begum upon her death.

Rai Bahadur Dalip Narayan Singh also instituted, on the mortgage of 10th February 1916, four other suits which were numbered 80, 81, 82 and 83.

Against the decree in suit No. 80 Mahadeo Lal Marwari, the transferee from Amir Hussain, preferred appeal No. 243, and against the decree in suit No. 82 Davar Ali preferred appeal No. 273.

The Subordinate Judge tried suits Nos. 79 and 82 together and decreed them in full, giving six months'' grace for redemption, and directing that the sales in respect of the mortgage of the 10th February 1916 should be subject to the mortgage of the 22nd December 1915.

In appeal the Division Bench came to the same conclusion on the merits but moditied the decree of the Subordinate Judge by directing that there should be only one sale at which the properties covered by the first mortgage should be sold free of all encumbrances and that the sale proceeds of the properties covered by the first mortgage should be applied, first of all, to the satisfaction of the first mortgage and that the balance, if any, should then be carried proportionately to the credit of the owners of the equity of redemption; that the sale proceeds of be properties other than those covered by the first mortgage should then be credited to the owners in proportion to their respective shares and after the addition of the surplus left, after satisfying the first mortgage, they should be applied to the satisfaction of the decrees on the four second mortgages.

We are now concerned only with the decree made in appeal 274. It is urged that, whether the decision of the High Court is one of affirmance or reversal, the application complies with the provisions of Section 110, Civil P.C., because there is a substantial question of law involved in the appeal.

It is contended that the substantial question of law is whether the plaintiff, by redeeming the mortgage of the 22nd December, 1915, acquired all the rights of Rai Bahadur Baijnath Goenka against the parties to that mortgage and their heirs.

It is urged that the respondent not having ''acquired an interest as puisne mortgagee in the share of Mukmi Begum was not entitled by subrogation to enforce the first mortgage against Mukmi Begum or her heirs and that at most he was entitled to demand contribution.

In my opinion there is no substance in this contention.

I will assume that Mukmi Begum was not a surety for her four sons and that the property was held not as a joint but as a tenancy-in-common. It is admitted that the shares of her four sons who mortgaged their respective interests on the 22nd December 1915 were defined though undivided.

It is also admitted that the puisne mortgagee being interested in a part of the equity of redemption was obliged to redeem the whole of the prior mortgage in order to protect himself.

In my opinion Section 74, Transfer of Property Act, places no restrictions or limitations and gives the puisne mortgagee in such a case the right to be subrogated to the position of the prior mortgagee.

It is said that the puisne mortgagee must as for contribution. But contribution and subrogation are separate and collateral remedies, and no authority has been shown in support of the proposition that a mortgagee of an undivided share held in common, who redeems the whole property is not entitled to enforce the prior mortgage against the whole proparty. The learned Counsel for the appellant observes that this is a case of first impression. That may be so, but, in my judgment, no substantial question of law is involved.

It is next contended that, even if the appeal involves no substantial question of law it complies with the provisions of Section 110, Civil P.C., inasmuch as the decision of the High Court is one of reversal.

On the face of it the order of the High Court is one of affirmance. But it is urged that by giving a further period of grace of six months, the High Court has made interest run at the bond-rate for a period of nearly three years and ten months beyond the date fixed by the Subordinate Judge, and that as, this is a new decree making the appellant liable for a larger sum of money, the decision must be considered as one of reversal.

Now in every case, when an appeal is preferred against a preliminary mortgage; decree, a decision be the appeal Court dismissing the appeal renders the mortgagor liable) to a large sum. Much more so is this the case when the period of grace is extended. But can it be said that the decision is one of reversal? It is conceded that if the period of grace had not been extended the decision would not have been one of reversal. What difference then does the extension of the period of grace-make? For the purposes of Section 110, Civil P.C. the substance of the matter has to be looked at. The trial Court and, therefore, as the High Court were entitled to give such period of grace as they thought fit within the statutory limit. There is no appeal against the exercise of this discretion, although in regard to final decrees, in foreclosure and'' redemption suits the enlargement of time under Order 34, Rule 3 and 8, Civil P.C., is appealable. It was pen to the appeal Court in dismissing the appeal either to extend time or not: In this case it, did so for the benefit of the judgment-debtors. The judgment-debtors now say that it was not for their benefit, but they did not make any such objection in the High Court. If they did not wish-to run the risk of having to pay the contract interest after the date fixed by the trial Court, it was open to them to pay off the dacretal amount at any time after the trial Court''s decree. I have no doubt that in this case the order of the High Court, extending t-he period of grace to six months after the High Court''s decree was made and accepted as one for the benefit of the judgment-debtors.

It follows from this view that this part of the decision of the High Court, although it modifies the decree of the trial Court, cannot, for the purposes of this application, be regarded as an order of reversal. The decision reversed must be a decision which is the subject-matter of the appeal. Here the appellant does not take exception in his appeal to the extension of time. If he had objected, the High Court would certainly not have extended the time. I think, therefore, that the contention that the decision is one of reversal must fail. Finally the appellant urges that a substantial question of law is involved in that part of the decision of the High court which relates to the validity of the first bond. It is urged that the High court should have held that the bond was bad for partial failure of consideration.

Now, this bond was executed on the 22nd December 1915, and it states that the money is being borrowed from Rai Bahadur Bajinath Goenka to pay off, among other debts, a mortgage executed on the 12th February 1915, in favour of Damodar Das. It was found both by the trial court and the High court that the date "12th February 1915" was a mistake for the "22nd October 1915"; and that of date prior to the 22nd December 1915 there was only one outstanding bond in favour of Damoclar Prasad, namely that of the 22nd October 1914, and that out of the consideration money of the bond of 22nd December 1915 a sum of Rs. 43,200 was in fact applied to the discharge of this bond.

The High court held that it had complete power, if necessary, to rectify the mortgage bond of 22nd December 1915, and that in any event the suit upon that bond could not be defeated on the ground that there had been a partial failure of consideration. Indeed, it was found as a fact that Baijnath Goenka had paid not only the sum of Rs. 43,200 to Damodar, but an additional sum of Rs. 1,000 which was due upon his fond, but which had not been taken into account in the calculations which resulted in the execution of the bond of the 22nd December 1915.

In my opinion the question whether she consideration for the bond of the 22nd December 1915, had been fully paid by Baijnath Goenka, was a pure question of fact. It was decided in favour of the bond and no substantial point of law was involved in that decision.

The result, therefore, is that, in my opinion, the appellant has not shown that the case complies with the provisions of Section 110 and, therefore, leave to appeal must be refused with costs: hearing-fee five gold mohurs.

Wort, J.

I agree.