BAI JAYABEN GIRJASHANKER OZA Vs. BAI BHANUMATI DAMJI

JUDGEMENT

(1.) In this second appeal, a short but interesting question of law arises.

(2.) The facts giving rise to this second appeal are briefly stated as under :-3. The respondent No. 1 Bai Bhanumati is a second mortgagee. The respondent No. 2 Harjivan is an original mortgagor, a judgment-debtor. One Damodar Chattrabhuj was a first mortgagee. He had filed a Civil Suit No. 46 of 1960 against the respondent No. 2 Harjivan for recovery of his mortgage dues and he had obtained a decree for recovery of his dues from the sale of the mortgaged property. The respondent No. 1 Bai Bhanumati in whose favour the second mortgage was executed by the said judgment-debtor was not a party to that suit. It means that the subsequent mortgagee was not a party to the suit filed by a prior mortgagee for recovery of his mortgage dues. The aforesaid suit was filed on 26th September, 1960. The said first mortgagee filed a Regular Darkhast No. 290 of 1960 to recover Ra 7.654.01 by a sale of the mortgaged property described in the Darkhast in the Court of the Joint Civil Judge, Junior Division, Rajkot on 31-121960. He also filed Darkhast No. 295 of 3960 in the same Court for the execution of that very decree. The present appellant Bai Jayaben had filed a Civil Suit No. 839 of 1959 and had obtained money-decree in that suit in her favour against the respondent No. 2 on 2nd September, 1960 for Rs. 1,421.21 nPs. She filed a Darkhast No. 131 of 11961 against the respondent No. 2 to recover Rs. 1,589.11 nPs. for execution of the decree obtained by her, by attachment of the surplus amount lying in Regular Darkhasts Nos. 290 of 1960 and 295 of 1960 which were filed by Damodar Chattrabhuj, the first mortgagee against the second respondent, on 17th June, 1961. The learned Joint Civil Judge issued attachment warrant under Order 21, Rule 52 of the Civil Procedure Code for attaching the amount lying in the Court in the aforesaid Darkhasts, It will be proper to note at this stage that in execution of the aforesaid mortgage decree, the mortgaged properties were sold subject to the second mortgage with which we are concerned in this appeal and other subsequent mortgages also, and after satisfaction of the decretal dues of the first mortgagee who had obtained a decree, the surplus amount of the sale proceeds was lying in the Court and that amount was attached by the present petitioner as referred to above. The present respondent No. 1 Bai Bhanumati, the second mortgagee filed an application in Darkhasts Nos. 290 and 295 of 1960 on 27th June, 1961 requesting the Court to give the surplus amount lying in the said Darkhast to her as she was a second mortgagee in relation to the property which was auctioned in the said Darkhast. The said application was forwarded by the learned Civil Judge, Senior Division, Rajkot to the learned Judge concerned for favour of necessary action. The respondent No. 1 Bhanumati gave another application on 28th June, 1961 (Ex. 5 of the present proceedings of the Executing Court), in the Darkhast filed by Damodar Chattrabhuj against Harjivan Ravjibhai, stating that she was a second mortgagee and the decree-holder (first mortgagee) had been paid off and, therefore she was entitled to the surplus amount lying in the Court. She also urged that the present petitioner Jayaben had filed a Darkhast No. 131 of 1961 and got this amount attached, but it was not legal and she was not entitled to that amount and eventually, the said amount should be given to her. The learned 3rd Joint Civil Judge, Junior Division, Rajkot kept this application for hearing on the date of Civil Regular Darkhast No. 131 of 1961 on 7th July, 1961. The learned 3rd Joint Civil Judge, Junior Division, Rajkot, rejected that application on the ground that Bai Bhanumati who is a second mortgagee can recover the amount from the property which has been sold. He also passed an order below the Darkhast that the surplus amount lying in the Darkhast No. 290 of 1960 be paid to the present appellant. A cheque for Rs. 1,400.34 nPs. was issued on 7th July, 1961 in the name of the present appellant. The respondent No. 1 Bhanumati got an interim stay and eventually that cheque was not encashed.

(3.) Being dissatisfied with that order passed by the Executing Court, the respondent No. 1 Bhanumati filed a Civil Appeal No. 130 of 1961 in the District Court at Rajkot The learned District Judge, Rajkot Mr. P. H. Parikh, relied upon a decision of the Madras High Court to which I will make a reference at an appropriate stage, and found that the present respondent No. 1, being a second mortgagee was entitled to the surplus sale proceeds in preference to the present appellant who was an attaching creditor of the respondent No. 2 and eventually, allowed the appeal and set aside the order passed by the Executing Court.