LALLANJI Vs. HUKUM SINGH; MATA DIN

JUDGEMENT

(1.) This appeal arises, out of the following circumstances: It appears that Mata Prasad and Devi Prasad, defendants land 2, executed a simple mortgage of certain property in favour of one Sanwalia, defendant No. 4, and his brother on the 29th of June, 1896. In the year 1907 the mortgagors made a simple mortgage in favour of Lallanji, the plaintiff respondent. Sanwalia, defendant No. 4, brought a suit for sale on his mortgage on the 1st of December, 1908, and obtained a decree for sale under the provisions of Section 88 of the Transfer of Property Act, No. IV of 1882, on the 23rd of December, 1908. Later on he applied for and obtained an absolute decree for sale. The date of this decree does not appear from the record, but the decree must have been pissed under the provisions of the present Code of Civil Procedure which had come into force on the 1st of January, 1909. To this suit and the subsequent proceedings Sanwalia, defendant No. 4, had omitted to implead Lallanji, the second mortgagee. When he proeeded to sell the property, the present suit was instituted by the second mortgagee for sale of the property on his mortgage, and a declaration was also sought to the effect that the property was not liable to sale in execution of the decree obtained by the prior mortgagee, defendant, and also prayed for a permament injunction restraining him from executing the decree. In the alternative the plaintiff asked for such relief as the court might think he was entitled to. The suit was defended by the prior mortgagee alone, who pleaded, inter alia, that unless the amount due to him was paid the claim could not be maintained. The Munsif came to the conclusion that, the prior mortgagee having failed to implead the plaintiff in his suit for sale, that decree was not binding on the plaintiff and a fresh suit on the prior mortgage being now barred by time, the plaintiff was entitled to the decree claimed. This judgment has been affirmed, on appeal by the learned Judge of the lower appellate court on the strength of the case of Janki Prasad v. Kishen Dat (1894) I.L.R. 16 All. 478. The defendant first mortgagee comes here in second appeal, and his contention is that the plaintiff is not entitled to sell the property without redeeming his prior mortgage. This appeal came up before a learned Judge of this Court who, having regard to the importance of the question raised in this appeal and the doubt expressed in some cases about the correctness of the view expressed in the case of Janki Prasad aforesaid, referred the matter to a larger Bench. The question raised in the case, put shortly, conies to this, what is the effect of the failure of a prior mortgagee to implead a subsequent incumbrancer in his suit for sale? Does it result in the total destruction of his rights as a mortgagee, so far as the puisne incumbrancer is concerned or does this omission simply amount to this that the right of the puisne incumbrancer to challenge the validity and binding effect of the prior charge remains unaffected because he has had no opportunity to contest it and therefore the only right which the second mortgagee has is to have the question tried out? In our opinion there is no warrant for holding that the mere omission would result in the total extinction of the rights of the prior mortgagee. That this is so would appear from cases in which it has been held that a person who has purchased mortgaged property at a sale in execution of a decree on a prior mortgage to which the second mortgagee was no party is entitled to set up the prior mortgage as a shield in a suit for a sale brought by the second mortgagee, and the second mortgagee has in those cases been held to have a right to sell the property in satisfaction of his mortgage only on the condition that he pays up the prior mortgage. See Ghulam Safdar Khan v. Sukhi (1917) 15 A.L.J. 190, and compare Gokaldas Gopaldas v. Puranmal Premsukhdas (1884) I.L.R. 10 Calc. 1035 and Rahim-un-nissa v. Badri Das (1911) I.L.R. 33 All. 368. We have now to see whether the mere fact that the prior mortgagee has not yet sold the mortgaged property makes any difference in his rights. We are not aware of any principle on which a distinction can be made between the rights of a decree-holder prior mortgagee and a prior mortgagee who has purchased the property in execution of his own decree on the mortgage.

(2.) The learned Judges who decided the case in 16 Allahabad seem to have overlooked totally this aspect of the question. Joaes, in his well-known work on the Law of Mortgages, says. When a party in interest other than the owner of the equity of redemption is not made a party to the bill the foreclosure is not generally for this wholly void. It is effectual as against those persons interested in the equity who are made parties. The sale vests the estate in the purchaser, subject to redemption by the person interested in it who was not made a party to the proceedings. His only remedy, however, is to redeem. He cannot maintain ejectment against the purchaser. Ho cannot have the sale set aside by intervening by petition in the foreclosure suit. His only right is the right of redemption". Jones, Paragraph 1395). To put it in other words, "omission to join keep intact the rights of persons not joined."

(3.) There can be no doubt whatever that the claim put forward by the plaintiff respondent is not one which upon merely equitable ground is entitled to consideration. We consider that there is nothing to prevent the defendant from compelling the plaintiff respondent to redeem him before the property can be sold to satisfy the plaintiff s mortgage.