MT SRIMATI Vs. SAHU NAND KISHORE

JUDGEMENT

(1.) This is an appeal by a judgment-debtor Mt. Srimati from an order in execution dismissing her objections in execution proceedings arising out of the following facts: As there have been three separate litigations it would be convenient to give the dates of each separately. On 18 February 1904 Khalilurrahman executed a mortgage deed in favour of Kumar Sen, Bansidhar and Jagannath of 5 biswas of Shahpur Bhusauri along with other properties. On 23 August 1915 a suit to enforce this mortgage was brought by the mortgagees, impleading the representatives of the mortgagor as well as Nand Kishore, the present respondent, as subsequent mortgagee (the latter held a mortgage dated 4 June 1910 to be mentioned hereafter). Nand Kishore did not contest the priority of the plaintiffs claim and a preliminary decree was passed on 28 February 1917. A final decree was passed on 13 January 1917. None of the defendants including Nand Kishor paid the mortgage-money and the 5 biswas share was sold at auction on 23 July 1917 and purchased by Kumar Sen and Bansidhar according to the sale certificate filed. Jagannath apparently had died, and it is suggested on behalf of the appellant that under some private partition his rights had passed on to Kumar Sen and Bansidhar.

(2.) On 18 February 1904 another mortgage deed was executed by the same mortgagors in favour of Narayan Das, Ganpat Rai and Chhedan Lal of another 5 biswas share in the same village Shahpur Bhusauri. A suit to enforce this mortgage was filed on 19 August 1915 by Ganpat Rai and Chhedan Lal, impleading the heirs of Narayan Das and also impleading Nand Kishore, the present respondent. It is suggested on behalf of the appellant that the rights and interest of Narayan Das had passed to Ganpat Rai and Chhedan Lal under some private partition. Nand Kishore did not challenge the priority of this mortgage and a preliminary decree was passed on 26 May 1916. A final decree was then passed on 26 September 1916. None of the defendants including Nand Kishore paid up the mortgage money and the 5 biswas share was sold at auction on 20th September 1917 and purchased by Kumar Sen for Bansidhar according to the sale certificate. It may be mentioned in this connexion that subsequently on 31st October 1917 Nand Kishore applied to have the sale set aside, but his application was dismissed and the sale was confirmed.

(3.) If these facts had stood by themselves there would have been no doubt that the failure of Nand Kishore, the subsequent transferee, to pay the amount of these mortgage-decrees and the auction sales, in consequence would have passed absolute title to the auction purchasers free from all subsequent incumbrances. When a property is sold in execution of a decree obtained on the basis of a prior mortgage in a suit to which the subsequent mortgagees are parties, the only right of the subsequent mortgagees is to redeem the prior mortgage in time. If they fail to do so and the property is allowed to be sold, it is sold free from all subsequent incumbrances, with the result that the auction purchaser acquires absolute title thereto without any right in the subsequent mortgagees to enforce their claim as against him.