MONOHAR DAS MOHANTA MOHARAJ Vs. HAZARIMULL BABU

JUDGEMENT

(1.) This case which comes before this Board on appeal from a judgment of the High Court at Calcutta reversing the judgment of the Subordinate Judge of Burdwan, raises the question whether the holder of a final decree for sale of mortgaged property is entitled to maintain a separate suit to enforce a further charge against such property for payments made to prevent a sale for arrears of revenue which fell due after the passing of the final decree and while execution proceedings were pending.

(2.) In 1918 the then Mahant of the Asthal Mutt instituted a suit on a mortgage executed in his favour on 30th January 1905, against the mortgagors, the Tewari family, who are represented in the present suit by defendants 1 to 6, joining the present defendant 7, in whose favour they had executed subsequent mortgages, and also other members of his family, who were interested in an earlier usufructuary mortgage of some of the properties mortgaged to the Mahant. According to the finding of the lower Courts, prior to the institution of the present suit, the sole interest in this usufructuary mortgage had become vested in the present defendant 7.

(3.) The Mahant obtained a preliminary decree for sale on 23 June 1910, and a final decree on 6 June 1920. Shortly afterwards he died and was succeeded in office by the present plaintiff's, who took out execution proceedings in mortgage execution case No. 258 of 1922. While these execution proceedings were pending the Tewari family, the mortgagors, allowed the Government revenue on some of the mortgaged properties for the years 1923 and 1924 to fall into arrears, and on each occasion the plaintiffs to protect his interest and stop the revenue sale, deposited the amount of the arrears under the provisions of S.9 Act 11 of 1859, which is in the following terms: " 9. Deposits-receivable from persons not proprietors. The Collector or officer as aforesaid shall be any time before sunset of the latest day of payment determine accordingly to S.3 of this Act receive as a deposit from any person not being a proprietor of the estate of the share of an estate in arrears the amount of the arrear of revenue due to be credited in payment, of the arrear at sunset as aforesaid, unless before that time the arrears shall have been paid by a defaulting proprietor of the estate. And in case the person so depositing whose money shall have been credited in the manner aforesaid shall be a party in a suit pending before a Court of justice for the possession of the estate or share from which the arrear is due, or any part thereof it shall be competent to the said Court to order the said party to be put into temporary possession of the said estate or share, or part thereof, subject to the rules in force for taking security in the cases of parties in civil suit. And if the person so depositing, whose money shall have been credited as aforesaid, shall prove that before competent civil Court that the deposit was made in order to protect an interest of the said person which would have been endangered or damaged by the sale or which he believed good faith would have been endangered or damaged by the sale, he shall entitled or cover the amount of the deposit with or without interest as the Court may determine, from the defaulting proprietor. And if the party so depositing whose income shall have been credited as aforesaid shall prove before such a Court that the deposit was necessary in order to protect any lien he had on the estate or share or part thereof, the amount so credited shall be added to the amount of the original lien."