SUBODH CHANDRA NAG Vs. KLBANK, LTD

JUDGEMENT

(1.) This rule was issued on the application of defendant 2 (Uma) for permission to file an appeal in this Court in forma pauperis. The plaintiff, opposite party 1, instituted a suit to enforce two mortgages said to have been executed in its favour by Mr. Charu Chandra Nag and his wife Priyabala Nag. During the pendency of this suit, Priyabala died leaving five sons as her heirs. Those five sons were duly substituted in her place. While the four elder sons did not take any part in the mortgage suit, it was the youngest only, namely defendant 2 (Uma) who filed a written statement and contested the suit along with his father, Mr. Charu Chandra Nag. The learned Sub-ordinate Judge has passed a mortgage decree and it is against this decree that defendant 2 (Uma), the petitioner, wants to file an appeal in forma pauperis. We issued the rule and directed the rule to be served on the learned Senior Government Pleader as the matter involved revenues of Government. The rule was served upon the Senior Government Pleader, but he does not appear and we are told that his instructions are not to appear and take part in these proceedings in this Court. Opposite party 1 however has appeared through Dr. Pal, who opposes this rule. The first question that has to be decided is whether the petitioner has established that he is a pauper, that is to say, unable to pay the court-fees on the memorandum of appeal which come up to a sum of Rs. 1320. Two paragraphs of the petition on which the rule was issued are material for the purposes of deciding the question raised before us in this rule. They are paras. 12 and 14. In para. 12 the petitioner states that he is a poor clerk of the Prafulla Chandra Cotton Mills, Khulna, drawing a salary of Rs. 15 only per month, is not possessed of sufficient means and is unable to pay the fee required for the memorandum of appeal, viz., Rs. 1320. In para. 14 he states that besides the suit property he is not in possession of any other immovable property. He is in possession of moveable properties which he sets out and values in the schedule. The moveable pro- parties set out in the schedule consist of seven items, wooden almirahs, and wooden boxes, etc. which are valued at Rs. 62-12-0.

(2.) Dr. Pal in opposing the rule says that from the petition it would appear that the petitioner has an interest in the equity of redemption. That fact is not disputed, namely that the petitioner has an interest in the equity of redemption. He says that the petitioner's share in the equity of redemption ought to have been valued in the application and as that has not been done the petitioner has not established positively that he is not possessed of property sufficient to enable him to pay the requisite court-fees on the memorandum of appeal. The contention of Dr. Pal raises the question as to whether in a suit to enforce a mortgage the equity of redemption is to be regarded as the subject-matter of the suit or not. It is assumed by both the parties that for the purpose of deciding the question of the ability of the applicant to pay court-fees the value of the subject-matter of the suit cannot be taken into consideration. The question therefore is whether the equity of redemption can be regarded as the, subject-matter of the mortgage suit. In other High Courts the view has been taken that in a suit to enforce a mortgage, the equity of redemption in the mortgagor or defendant cannot be regarded to be the subject-matter of the suit, and for the purpose of deciding the question as to whether the mortgagor is a pauper or not the value of the equity of redemption cannot be excluded by the Court from its consideration. One of the cases which have taken that view is Durga Prasad V/s. Srinivasa Sureka ( 30) 17 AIR 1930 Pat 368. A similar view was taken in Kapil Deo Singh V/s. Ram Rikha Singh ( 11) 33 All 237. But we do not wish to place much reliance upon the decision of the Allahabad High Court reported in Kapil Deo Singh V/s. Ram Rikha Singh ( 11) 33 All 237, for the reason that in that case the suit was not a suit for enforcement of the mortgage but it was a suit for redemption. It may be possible to take the view that in a suit for redemption the equity of redemption is the subject-matter of the suit. But we may point out that in spite of such a contention the Allahabad High Court took the view that in considering the application to sue in forma pauperis in a suit for redemption the value of the equity of redemption will have to be taken by the Court in considering the question of the ability of the applicant to pay the requisite court-fees.

(3.) A suit however for enforcement of a mortgage at the instance of a mortgagee, in our judgment, stands on a clear footing. We cannot hold that in such a suit the equity of redemption which is in the mortgagor or defendant is the subject-matter of the suit. No doubt as a result of the execution of the decree passed in such a suit the equity of redemption may be lost to the mortgagor at a sale in execution of the decree, but the subject-matter of the suit is only the money claimed by the mortgagee charged on the immovable properties mortgaged. The subject-matter of the suit cannot therefore be considered to comprise the whole interest in the property mortgaged. Whether the equity of redemption would eventually pass out of the mortgagor or not would, to a certain extent, depend upon the default or ability of the mortgagor himself for if after the preliminary decree or final decree he pays up the decretal amount there would be no further question. We accordingly hold in agreement with the decision in Durga Prasad V/s. Srinivasa Sureka ( 30) 17 AIR 1930 Pat 368, that the equity of redemption cannot be considered to be the subject-matter of the suit which we have before us. Defendant 2 (Uma) was therefore bound to state the valuation of the equity of redemption on oath in his affidavit in support of his application under Order 44, Rule 1, Civil P.C.; not having done so, his application is defective and, on the materials placed before us, we are not in a position to say that the applicant has no property sufficient for the purpose of enabling him to pay the court-fee of Rs. 1320 which he is required to put on his memorandum of appeal.