Radhey Singh and Others vs Jagrup Rai and Others

Sir John Edge, Kt., C.J.—The plaintiffs were appellants here. They brought their suit to have it declared that a decree obtained on the 12th September 1882, on an unregistered bond of the 31st January 1877, and the auction-sale held under that decree at which the defendants purchased were null and void. The plaintiffs were mortgagees of the property. Their mortgage was dated the 5th December 1877, and was registered. On that mortgage they obtained a decree on the 19th December 1882. The question turns on s. 50 of the Registration. Act. Now in this case the unregistered mortgage which was the basis of the defendants'' title was prior in date to the plaintiffs'' registered mortgage, but the plaintiffs'' registered mortgage was prior in date to the making of the decree on the unregistered mortgage. It appears to me that under s. 50 of the Registration Act the decree or order which is not to be affected by a registered document must be a decree or order made prior to the execution and registration of the registered document. The question was considered by this Court in The Himalaya Bank Limited Vs. The Simla Bank Limited and Another, and it appears to me that I have come to the same conclusion as the learned Chief Justice and my brother Tyrrell did in that case with respect to the question of priorities. We cannot grant the relief asked for by the plaintiffs. The decree under which the sale toot place was a perfectly good decree, the only thing is that it does not affect the plaintiffs'' right to have it declared that it was subject to their lien. The decree that I shall propose will be that the appeal be decreed with costs and the suit of the plaintiffs'' decreed to this extent that it be declared that the decree of the 12th September 1882, and the sale thereunder of the 12th March 1887 did not affect the rights of the plaintiffs under their registered mortgage of the 5th December 1877, and the decree thereon of the 19th December 1883.

Straight, J.

I am of the same opinion. I think that the law is very clearly stated on this point in the judgment of Shahi Ram v. Shib Lal Weekly Notes, 1885, page 63 decided by Mr. Justice Oldfield and my brother Mahmood, and referred to in The Himalaya Bank, Limited, v. The Simla Bank, Limited, and the view therein held entirely coincides with the view just now expressed by the learned Chief Justice, and is also in accordance with the view I myself expressed in the case of Kanhaiya Lal v. Bansidhar Weekly Notes, 1884, page 136. A like view is taken by the Madras Court in (1883) ILR 6 88 I also agree in the order proposed by the learned Chief Justice and the form which the decree should take.

Tyrrell, J.

I also concur.

Mahmood, J.

I am also of the same opinion, and only wish to gay that in the case of Shahi Ram Shib v. Lal Weekly Notes, 1885, pages 63 I had the honor of considering this question with Mr. Justice Oldfield, and the views which were then expressed were approved, as my brother Straight has pointed out, by Petheram, C.J., and my brother Tyrrell in the case of the Himalaya Bank, Limited, v. The Simla Bank, Limited, ILR 8 All. 23. Indeed, at page 28 a passage from that judgment is quoted which is of importance in this matter; and I give my concurrence all the more willingly, because now a Bench consisting of the whole of this Court as now constituted has approved it.

Knox, J.

I agree with the learned Chief Justice.