KARSON CHAMPSI Vs. MEGHJI ASARIA SHAH

JUDGEMENT

(1.) [his Lordship, after setting out the facts of the case as above, continued:] Mr. Daphtary for defendants Nos. 7 and 8 to the counter-claim has referred to Mayer v. Murray (1878) 8 Ch. D. 424, which is an authority for the proposition that in an action for account by a mortgagor against a mortgagee in possession who has sold, the mortgagor is entitled to an account of the proceeds of sale received by the mortgagee or by his order or for his use, " or which without his wilful default might have been so received ", although wilful default may not have been charged in the pleadings and proved at the trial. Jessel M. R. in the course of his judgment said that the general rule is that in every case an order charging wilful default must be based upon a charge of wilful default in the pleadings, but that the case of a mortgagee in possession has always been an exception to that rule, and he expressed the opinion that a mortgagee in possession must account for what without his wilful default he might have received from the time; of his taking possession. The matter came before the Master of the Rolls in that case on speaking to the minutes of the judgment, i. e. before it was drawn up. In the case before me defendants Nos. 7 and 8 are parties to the suit and they might, if they had chosen to do so, have applied to the Court for insertion in the decree, before it was drawn up, of words which would have made it incumbent upon the mortgagee in possession to account upon the footing of wilful default. They did not do so. I am clearly of opinion that the decree being in the form in which it is, the Commissioner was perfectly right in declining to deal with the accounts upon the footing of wilful default. Accordingly these exceptions must be dismissed.

(2.) THE rest of the judgment is not material for the purposes of this report. .