SATGUR PRASAD Vs. RAM SEWAK JAISWAL

JUDGEMENT

(1.) THIS execution second appeal arises out of an objection filed by the appellant under section 47 of the Civil Procedure Code. The execution court allowed the objection. However, on an appeal preferred by the decree-holder respondent the court of appeal below set aside the order of the execution court. It dismissed the objection under section 47 filed by the appellants but imposed a condition that the decree-holder respondent shall deposit certain amount in the execution court. The facts of the case are not disputed. The judgment-debtor respondents nos. 2 to 6, executed, a mortgage dated September 9, 1939 in favour of Smt. Sunder. Another mortgage was executed by them on 13.8.1954 in favour of the decree-holder respondent. The first mortgage instituted a suit for recovery of the amount due to her under the mortgage dated September 9, 1939. In this suit the subsequent mortgage was not impleaded as a party. A decree for sale was passed in, in the said suit. In execution of the said decree the mortgaged property was auctioned on 30th January, 1962 which was confirmed on 3rd March, 1962 and was purchased by the appellants. The sale in their favour was confirmed on May 2, 1962. While the aforesaid suit was pending the decree-hoder respon dent filed suit no. 849 of 1952 for the recovery of the mortgage money due to him under the second mortgage dated August 13, 1954. The said suit was decreed on 6th August, 1963. The decree-holder respondent then applied for the execution of the said decree in execution case No. 100 of 1968. There upon appellants filed an objection giving rise to this second appeal. The appellants alleged that they were not parties to the suit of the puisne mortgage namely respondent no. 1 and the decree passed in the said suit no. 849 of 1952 was not binding on them. They further pleaded that they were bona fide purchasers for value of the property in dispute and the decree obtained by the puisne mortgage cannot be enforced against them. As already stated above this objection found favour with the execution court but the court of appeal has taken a different view. On behalf of the appellants the same grounds have been pressed before me. In the first place it has been argued that the appellants were bona fide purchasers for value and the decree obtained by the puisne mortgage could not be enforced against them. It has been submitted that in the proclamation of sale drawn up under Order 21, Rule 66 of the Civil Procedure Code in the ' suit of the first mortgage namely suit no. 87 of 1955 the puisne mortgage was not shown as one having an incumbrance on the property, and they were not aware that any such incumbrance existed. In the next place it has been urged that the doctrine of lispendence apply to a sale intervivos and cannot be invoked in the case of a court sale. It may be stated that rule 1 of Order 34 of the Civil Procedure Code certainly does require that all persons having a right of redemption shall be joined as parties to a suit filed on the basis of a mortgage. The explanation of the said rule, however, lays down that this rule would not apply if the plaintiff in the suit is a puisne mortgage. It, therefore, follows that it was incumbent on the plaintiff of suit no. 87 of 1955 to have impleaded the puisne mortgage as a party to the suit. THIS however, would not make the decree obtaine d in the said suit a nullity for the simple reason that rule 9 of Order 1 of the Civil Procedure Code lays down that no suit shall be defeated by the reason of misjoinder or non-joinder of parties. Disagreeing with the view taken on this point by Madras High Court a Division Bench of this court in the case of Mohammad Mohsin and another v. Kausar Raza and others A. I. R. 1956 Alld. Page 422 has taken the view stated by me. In doing so the Bench has followed the opinion of a Full Bench of this Court in an earlier decision of the case Ram Sanehi Lal and another v. Janki Prasad and others A. I. R. 1931 Alld. 466. The fact that the puisne mortgage namely the decree-holder respondent had not been impleaded as a party to the first suit no. 87 of 1955 was not due to any fault of the present decree-holder respondent. He cannot be penalised on account of any negligence on the part of the prior mortgage. On behalf of the appellant in this case no authority has been shown to me which lays down that if a prior mortgage obtained a decree without impleading the puisne mortgage the effect of the decree is to wipe of or to obliterate the puisne mortgage. In fact on principle it would be absurd to take such a view. The position then is that inspite of the decree obtained by the first mortgage in the sale held in pursuance of the said mortgage the rights of the puisne mortgage survived. He can enforce the said rights at his option either by seeking foreclosure of the mortgage or by suing for the mortgage money. On behalf of the appellant reliance was placed on a Privy Council case Zainul Abdin v. Molid. Ashghar Alt Khan & others I. L. R. 10 Alld. 166 and it was contended that the appellants were bona fide purchasers for value and the decree obtained by the puisne mortgage could not be enforced against them. The said case is wholly distinguishable on facts. The question, which fell to be considered in that case was that if a certain property was sold in execution of a decree and was purchased by a third party, and that decree was subsequently " reversed or set aside, will the sale in. favour of the third party stand or showed to be set aside. The answer given by the Privy Council was that in case the auction purchser, third party was a bona fide transferee for value the sale held in his favour could not be set aside. THIS principle has been followed by this court and by the Supreme Court in a number of cases. In Ram Sanehi Lal (supra) the following among other principles were laid down : (a) The Doctrine of lispendence applies not only to private sale but also the court sale held in execution of decree. (b) If a puisne mortgage is not implcaded as a party in a suit filed by the prior mortgage the decree obtained in consequence is not a nullity. (c) A purchaser at an auction sale held on the basis of a decree obtained by a prior mortgage is bound by the rights of a puisne mortgage. In the case of Mohammad Mohsin (supra) the said principle was reiterated and it was observed that an auction purchaser in these circumstances acquires at the court auction the title of the mortgagor and to a certain extent the rights of the mortgage. From this it follows that the appellants had stepped into the shoe of the judgment debtor respondent who were the mortgagors and are subject to all the liabilities of the mortgagors. In the view, which I have taken the lower appellate court was right in setting aside the order passed by the trial court. A cross objection has been filed by the decree holder respondent against that part of the order of the trial court whereby it directed the decree-holder respondent to deposit in court for the payment to the objector the decretal amount of suit no. 87 of 1955. From the judgment of the trial court it does not appear why it considered it necessary to give the said direction. The Transfer of Property Act, 1882 gives a mortgage a right either to sue for fore-closure or for the recovery of the mortgage money. It is true that a puisne mortgage is a mortgage of the equity of redemption, Never-the-less the option to choose any of the two remedies stated above is that of the puisne mortgage. The decree-holder respondent in the present case was not a party to suit no. 87 of 1955, he could not be made responsible to pay the decretal amount of the decree passed in the said suit. The direction given by the court below cannot be sustained in principle and must be set aside. The appellants have today moved an application before me praying that they may be allowed to deposit the decretal amount of the decree obtained by the decree-holder respondent and for that purpose suitable direction may be given to the execution court. In my opinion this application cannot be entertained in this court. The appellants may move an application to that effect before the execution court if they are so advised. I consider it necessary to make it clear that nothing contained in this judgment shall preclude the execution court from considering an application of this nature on merits if and when it is moved before it. The result is that this second appeal fails and is hereby dismissed. The cross-objection is allowed and to that extent that the decree of the court below is set aside. In the circumstances of the case the parties shall bear their own costs.