Mt. Dhanwanti Chaudharin vs Hargobind Prasad and Others

Kulwant Sahay, J.—[After setting out facts his Lordship proceeded as follows]:

The only point argued by the learned Counsel for the appellant is that the defendant third party, who is the first mortgagee, has no right to redeem the plaintiff who is the second mortgagee. His contention is that having regard to the fact that the second mortgagee, namely, the plaintiff, was not made a party to the suit brought by the first mortgagee, the second mortgagee has the right to redeem, and once the second'' mortgagee exercises this right and redeems the first mortgagee, the latter is out of the field, he has no right in his turn to redeem the second mortgagee.

Now, the rights of the parties have been determined by the decree of the Munsif passed in the suit of the seoond mortgagee, Damely, the present appellant. The learned Munsif in dealing with issues Nos. 4 and 5 in the suit observed as follows:

Now the first mortgagee in this case happens to be a purchaser of the equity of redemption. Therefore, if the plaintiff pays the amount, due on the first mortgage, then the plaintiff in his own turn may be redeemed by the first mortgagee.

The decree prepared by the Munsif in accordance with this judgment also directs that in the event of the plaintiff redeeming the first mortgagee, the mortgagor or his representatives would be entitled to redeem the plaintiff on payment to her of the sum found due to her under her own mortgage as well as under the mortgage of the first mortgagee. The learned Counsel for the appellant relies upon the case of Durga Charan Mukhopadhya v. Chander Nath Gupta Chaudhary 4 C.W.N. 541 where the learned Judges of the Calcutta High Court observed that after a sale of the mortgaged property in execution of a decree obtained by the first mortgagee there is no right of redemption left in the mortgagor, his right to redeem went at the time of the first sale; and he contends that in the Full Bench case of Debendra Narain Roy v. Ramtaran Banerjee (1903) 30 Cal. 599 although the decision of the Division Bench in the case of Durga Charan Mukhopadhya v. Chander Nath Gupta Chaudhary 4 C.W.N. 541 was overruled on the question that the subsequent mortgagee had the right not only to redeem the first mortgagee but also to sell the mortgaged property subject to the encumbrance of the first mortgage, the decision of the Division Bench as regards the right of the mortgagor to redeem having been lost was not disturbed. To my mind the case of Durga Charan Mukhopadhya v. Chander Nath Gupta Chaudhary 4 C.W.N. 541, does not lay it down as a proposition of law that in no case the mortgagor can be allowed to redeem after sale of the mortgaged property. The question as to whether the mortgagor would be entitled to redeem the second mortgagee, who in his turn had redeemed the first mortgagee, even after the sale in execution of a decree obtained by the first mortgagee, was not considered, and the learned Chief Justice of the Calcutta High Court in the Full Bench case of Debendra Narain Roy v. Ramtaran Banerjee (1903) 30 Cal. 599 observes that a purchaser at a sale in execution of a decree obtained by the first mortgagee in a suit to which puisne encumbrancer was not a party, does not displace the latter but stands only in position of the first mortgagee and that under such sale the interest of the first mortgagee and of the mortgagor passed to the purchaser subject to the rights of the pnisue encumbrancer. The Full Bench there held that the right of the purchaser in execution of a decree obtained by the first mortgagee was the same as that of the mortgagor; in other words, the purchaser was a representative of the mortgagor and stood in his shoes and was therefore, entitled to redeem the second mortgagee.? The same view is expressed in Sir Bash Behari Ghosh''s Law of Mortgage, where the learned author in dealing with the case of Gopee Banthoo v. Kali Pado (1875) 23 W.R. 338 observes that though the purchaser under the first decree was entitled to the outstanding interest in the mortgagor, as the puisne mortgagee was not a party to it, the latter had a right to pay off the amount due under the first mortgage and that upon such payment he would be the "holder of the first charge" on the property with power to realise in the usual way, if the first mortgagee in his character of owner of equity of redemption did not choose to redeem. [Vide Ghose''s Law of Mortgage, page 658, 5th Edition]. It is manifest that in the present case the defendant third party occupies the double capacity of a first mortgagee as well as the owner of the equity of redemption by virtue of his purchase and, in my opinion, he is entitled to redeem the plaintiff on payment to him of the sum found due upon his mortgage as well as the sum deposited by the plaintiff to redeem the defendant third party.

Apart from the legal position of the parties their rights is the present case have been determined by the decree which is binding on both parties. That decree clearly entitled the defendant third party to redeem the plaintiff. Mr. P.K. Sen has referred to the wording of the decree of the Munsif drawn up in the vernacular wherein is is stated that the mortgagor and his ''warisan'' would be entitled to redeem the plaintiff, and he argues that the word "warisan" means not representatives but heirs and, therefore, the defendant third party, who is not the heir of the mortgagor, has no right to redeem, Mr. Shiveshwar Dayal on behalf of the respondent contends that the word "warisan" includes representatives as well as heirs. If there is any doubt as regards the interpretation to be put upon the decree we have to refer to the judgment, and, as I have already pointed out, the judgment clearly directs that the mortgagor and his representatives would be entitled to redeem. In fact in the passage quoted by me above from the judgment of the learned Munsif, it is quite clear that the defendant third party was given the right to redeem the plaintiff.

Under these circumstances the decision of the learned District Judge is correct and this appeal must be dismissed with costs.

No question has been raised in this Court as regards the maintainability of the appeal and the Revision Case is also dismissed but without costs.

Jwala Prasad, J.

I agree.