KARAN SINGH Vs. ISHTIAQ HUSAIN

JUDGEMENT

(1.) The suit which has given rise to this appeal was brought under the following circumstances.

(2.) One Ashfaq Husain who is now represented by the defendants respondents mortgaged his zamindari property under three mortgages. The first of these was executed in favour of Khurshed-un-nissa and others in 1884. The other two which also related to the same property were executed in 1887 in favour of Sheo Prasad, who was represented by Mohabbat Bahadur and others, Both sets of mortgagees brought suits upon their mortgages in 1910 and obtained decrees for sale; neither mortgagee was made a party to the suit of the other. Khurshed-un-nissa put her decree into execution and on the 20th of June, 1912, she caused the mortgaged property to be sold by auction and the present plaintiff purchased it for Rs. 14,250. The amount of the mortgage held by Khurshed-un-nissa was discharged in full out of the sale proceeds and there was a surplus of Rs 9,000 and odd which remained in court.

(3.) Mohabbat Bahadur and others applied for payment out of this sum of the amount of their decrees but, unfortunately, the court on the objection of the defendants, refused to grant their application. We think that in so doing the court acted erroneously. In our opinion upon the sale of the property the security held by Mohabbat Bahadur and others was transferred to the surplus sale proceeds which represented the mortgaged property. To this matter we will refer later on; but we may repeat that had it not been for the order of the court refusing to pay over to Mohabbat Bahadur and others the amount of their decrees and had not their mortgagor objected to such payment, the present litigation would never have come into existence. Upon the court s refusing to pay to Mohabbat Bahadur and others the amount due upon their decrees, the mortgagors themselves withdrew from court the aforesaid sum of Rs. 9,000 and odd. Mohabbat Bahadur and others then applied for execution of their decrees and for sale of the mortgaged property. Thereupon the plaintiff brought a suit for a declaration that Mohabbat Bahadur and others were not entitled to do so. This suit was dismissed, but the court deciding it added to its decree a condition to the effect that if the property was soil in execution of the decrees hold by the subsequent mortgagees, that is, Mohabbat Bahadur and others, the purchaser would not be entitled to obtain possession and to oust the plaintiff unless he redeemed the prior mortgage, in satisfaction of which the property had been sold and purchased by the plaintiff Mohab at Bahadur and others, the subsequent mortgagees, pursued their application for sale of the mortgaged property and their decrees were transferred to the Collector for execution In order to prevent a sale of the property the plaintiff paid the amount of their decrees and thus protected the property from the sale and then instituted the present suit for recovery of the amount paid together with interest. The suit was resisted by the defendants on various grounds. The court below has dismissed it mainly on the grounds that the purchase by the plaintiff was a purchase subject to the mortgage of Mohabbat Bahadur and others, and that therefore the amount which the plaintiff paid as consideration only represented the value of the interest of the mortgagors, and that the plaintiff was bound to discharge the mortgages of Mohabbat Bahadur and others if he wished to protect the property from a second auction sale. This, as we have said above, is the main ground upon which the learned Subordinate Judge has dismissed the suit. He has also held that Order II, Rule 2, of the Code of Civil Procedure is a bar to the maintenance of the present suit. We may at once observe that this last ground of the learned Judge s decision is wholly untenable. The cause of action for the suit which the plaintiff previously brought was not the same as that for the present suit At the time w hen that suit was brought he had not discharged the mortgages held by Mohabbat Bahadur and others, and therefore he was not in a position to claim in that suit the relief which he now seeks in the present suit.