NEELAMANI PATNAIK MUSSADI Vs. SUKADUVA BEHARA

JUDGEMENT

(1.) We must accept in second appeal the findings of fast of the learned District Judge that the mortgagors made the payment they pleaded to the mortgagee, and that they did so without notice of the prior assignment of the mortgage to the plaintiff. We think the learned Judge is right in holding that on the above findings plaintiff was bound by the payment so made.

(2.) The English Law on the point is quite clear, In Halsbury s Laws of England, Volume XXI, page 179, paragraph 334 it is state that the mortgagor is entitled to make payments to the mortgagee, whether of principal or interest, and to have credit for them as against the transferee after the transfer until he has received notice of it. And several English cases, including Bickerton v. Walker (1900) 1 Ch. 736 : 69 L.J. Ch. 465 : 82 L.T. 437 : 48 W.R. 612 : 16 T.L.R. 273 and Dixson v. Winch (1885) 31 Ch. D. 151 at p. 153 : 55 L.J. Ch. 227 : 53 L.T. 731 : 34 W.R. 141, are quoted.

(3.) There does not seem to be any good reason why that rule, which is founded on principles of equity, should not be followed in this country. It is true that, after the amendment of the definition of the term "action able claim" by Act II of 1900 so as to exclude mortgage-debts, Section 130 of the Transfer of Property Act (Act IV of 1882) does not apply to mortgage-debts, and the statutory provision in it that the payment to a transferor will be valid against a transferee save when the debtor is a party to the transfer, or has received notice thereof does not apply to proprio vigore. But this rule itself is based on the equitable principle referred to and reoognised in the English cases, and it subsists apart from the section itself. We think, therefore, the principle is applicable to payments by mortgagors though the section does not.