N.C. Lakshmikutti Ammal vs V. Mariathummal alias Thithumma and Others

Jackson, J.—Appeal from the appellate order of the Court of the Subordinate Judge of Palghat (in E.P. No. 1742 of 1919 on the file of the

Court of the District Munsif of Chowghat). There was a mortgage with possession and lease back on the same day. The appellant sued on the

lease and obtained a decree and is attempting to bring the property to sale. The respondent resists, contending that such sale is contrary to the

provisions of Order 34, Rule 14 of the Civil Procedure Code. The lower Courts have upheld this contention, hence the appeal.

I agree that the two documents in question Exs. A and B must be treated as one. In Ex. B, it is agreed that arrears shall be paid by the sale of

the equity of redemption, which appellant points to as marking a difference between the two transactions, but I do not consider that is sufficient to

justify their being treated as separate documents. Once the two documents are treated as one it must, I think, be taken as settled law (as observed

below the Calcutta rulings seem to be contradictory) that although the mortgagee may obtain a decree for rent on the lease document alone,

nevertheless his claim is one arising under the mortgage and within the mischief of Order 34, Rule 14. This has been ruled in terms in Ibrahim

Walad Goolam v. Nikalchand ILR (1919) B 366 which is followed in Raichand Kirparam v. Ranchhoddas Manchharam ILR (1920) B 174.

Gobinda Chandra Pal v. Kailas Chandra Pal ILR (1917) C 530 is to the same effect, as also the cases cited by the lower appellate Court Kadma

Pasin v. Muhammad Ali ILR (1919) A 399. Appellant would distinguish this latter case on the ground that the mortgagor had merely contracted to

collect the usufruct for the mortgagee, but I doubt if this affects the question, which turns on the actual contract effected between the parties and

not on the motive which induced them to make such a contract. The appellant relies strongly upon the ruling in Uttam Chandra Daw v. Rajkrishna

Dalal the language of which on page 405 undoubtedly helps him. But in Ashutosh Sikdar v. Beharilal Kirtania ILR (1907) C 61 it is found that a

sale in contravention of Section 99 of the Transfer of Property Act is irregular and voidable, and "" the mortgagee is prevented from bringing the

mortgaged property to sale in execution of a decree for the satisfaction of any claim related or extraneous to the mortgage "" page 67.

It is next argued that the above plea is not open to the respondents, because without raising this plea, they submitted to prior execution

proceedings which terminated in attachment and permission to the decree-holder to proclaim and sell by fresh petition.

No doubt the parties to execution proceedings are governed by the general law of estoppel, else there would be no end to the matter. They

cannot continue to raise the same plea over and over again but if the plea has never been raised before. I should hesitate to apply to execution

proceedings the principle of constructive estoppel.

Careful consideration would have to be given to the circumstances of each particular case. However, there is no need to consider this aspect of

the matter, in the present case, because the decree-holder cannot demand that the Court shall infringe a statutory provision merely because the

judgment-debtor has omitted to demand that it shall not. Cf. Gobinda Chandra Pal v. Kailas Chandra Pal ILR (1917) C 530, "" I do not think the

decree-holder can raise a plea of estoppel when fie must have known that he had himself induced the Court ex parte to pass an order to which he

was not entitled."" As soon as a Court is aware of an irregularity, it must avoid such irregularity suo motu irrespective of the intervention of the

parties of their right to intervene.

The appeal fails on all grounds and is dismissed with costs.