SHIB LAL Vs. BADLE RAM

JUDGEMENT

(1.) Badle plaintiff filed a suit against Shib Lal on 14th March, 1958, for possession of a house by way of foreclosure, on the ground that Shib Lal defendant had mortgaged it in his favour vide mortgage-deed dated 14th May, 1953, for a consideration of Rs. 786/- with a promise to redeem the mortgage on payment of the mortgage amount and interest due thereon at the rate of annas 10 per cent per mensem within three years of the date of mortgage, failing which the house was to stand sold to the plaintiff. The plaintiff had taken foreclosure proceedings in the Court of District Judge under Section 8 of the Bengal Regulation No. 17 of 1806 on the ground that the defendant had failed to make payment of the requisite amount within time. Shib Lal defendant pleaded that he had sold the house to Sabha Chand on 24th March, 1957 for a sum of Rs. 3,000/- out of which Rs. 1,000/- were left with him for payment to the plaintiff. Sabha Chand had become the owner of the house and he was in possession thereof. It was also pleaded that Sabha Chand had deposited Rs. 1,000/- on account of mortgage money in the Court of the District Judge on 22nd July, 1957 within time. On this plea Sabha Chand was made a defendant to the suit. On the pleadings of the parties, the following issues were framed by the learned trial Court :-

(2.) The first point argued by the learned counsel for the appellants is that the Bengal Regulation No. 17 of 1806 did not apply to houses but only to lands. I regret my inability to agree to this submission of the learned counsel. Sections 7 and 8 of the regulation were declared to be in force in the Punjab by the Punjab Laws Act, 1872. This regulation has reference to Bengal Regulation No. 1 of 1998 and according to its preamble that regulation applied to the mortgages and conditional sale of landed property and not only land. Landed property includes land and houses. In Section 7 of Bengal Regulation No. 1 of 1798 at some places the word "land" is used and at other places and words "mortgaged property" are used. In Section 8 of the said regulation it is prescribed that the application has to be made "to the Judge of the zila or city in which the mortgaged land or other property may be situated." The use of words "other property" shows clearly that not only land but houses are also within the ambit of the Regulation.

(3.) The next point argued is that the defendant-appellants had complied with the notice issued by the learned District Judge. A copy of the notice is Exhibit P.1 and it required Shib Lal to pay the sum of Rs. 977/5/6 comprised of Rs. 786/-, principal, and Rs. 191/5/6 on account of interest from 14th May, 1956 to 14 August, 1956 within one year of the receipt of the notice, failing which he would lose his right of redemption. This notice was issued on 14th November, 1956 and was served on Shib Lal defendant on 3rd January, 1957. The amount of Rs. 1,000/- was deposited by Sabha Chand on 22nd July, 1957, that is, within the year of grace. The notice did not mention that the amount of Rs, 977/5/6 had to be deposited with future interest from 14th August, 1956. The appellants, therefore, complied with the requirements of the notice and cannot be said to have defaulted in its compliance. The argument put forth by the learned counsel for the plaintiff-respondent is that Section 7 of Bengal Regulation No. 17 of 1806 makes applicable the provisions of Section 2 of the Bengal Regulation No. 1 of 1798 to the extended period of one year granted for an equitable right of pre-emption by Bengal Regulation No. 17 of 1806. According to Section 2 of Bengal Regulation No. 1 of 1798, the mortgagor can redeem the property by tendering the money lent to him with any interest due thereon within the stipulated period or to deposit the same in any civil Court within the jurisdiction of which his mortgaged property is situated and, therefore, when Sabha Chand deposited the sum of Rs. 1,000/- on 22nd July, 1957, he ought to have deposited the interest due upto that date. The notice issued to Shib Lal, however, did not require him to pay any interest in addition to Rs. 977/5/6 and allowed him one year's time to pay the same. It cannot, therefore, be said that the notice was not complied with. Sections 7 and 8 of Bengal Regulation No. 17 of 1806 are technical and, therefore, if the mortgagor can take advantage of a technicality, he would be allowed to do so, especially when for the non-payment of small amount of Rs. 32/9/9 he has to lose the house which was worth Rs. 3,000/- in 1957 and which Sabha Chand purchased in good faith. Shib Lal had left Rs. 1,000/- with him for payment to the plaintiff and that amount he deposited in Court within the period of grace. Both the appellants were, therefore, entitled to the redemption of the house on the amount having been deposited and the plaintiff was only entitled to that amount. At best, he could only sue for the balance amount of interest but could not foreclose the mortgage or become the owner of the mortgaged house. The suit of the plaintiff had been rightly dismissed by the learned trial Court and the learned District Judge was in error in reversing that decree.