SAILENDRA NATH BHATTACHERJEE Vs. AMARENDRA NATH MUKHERJEE

JUDGEMENT

(1.) One Atul Chandra Mukherjee, father of defendant 1, borrowed Rs. 500 from one Nirupama Debi on 10 June 1920 by mortgaging the properties in suit. This mortgage would hereafter be called the first mortgage. Thereafter he borrowed two sums of money on the security of the self same properties, namely, Rs. 5000 from the Sens (defendants 3 and 4), and Rs. 1600 from one Benode Behary Mukherjee (predecessor-in-interest of defendants 3 to 9). These two mortgages will hereafter be called the second and the third mortgages. On 17 March 1923, he borrowed a further sum of Rs. 2360 from the plaintiff, Sailendra, on the security of the self- same properties. This is the mortgage which is sought to be enforced in this suit. All these mortgages were simple mortgages. As the suit was instituted after the Bengal Money-lenders Act, 8 of 1933, the plaintiff limited his claim to Rs. 4720 only, being double the principal amount lent by him. In 1923, after the plaintiff's mortgage, the Sens sued to enforce their mortgage. They made the mortgagor, Atul and the mortgagee Benode parties defendants to the suit but omitted to implead the plaintiff, Sailendra, in their suit as they had. at the time no knowledge of the latter's mortgage. They obtained a final decree, in execution of which the mortgaged properties were sold and purchased by Amarendra and Anadi (defendants 10 and 11) in the benami of defendant 2. This sale was held on 12 January 1925. The said (defendants 10 and 11) thereafter paid up the dues of Nirupama who had also obtained a decree in a suit to which the plaintiff Sailendra was not a party. They took possession through Court on 11 February 1927, and are still in possession. The plaintiff filed his suit to enforce his mortgage on 17 September 1935. After giving particulars of his mortgage, he stated in the plaint that his interest had not been affected by the decree obtained by the Sens. He ignored Nirupama's mortgage but admitted his knowledge of the second and the third mortgages, and pleaded that he was not bound to redeem those mortgages, as the claims under them had already been barred by limitation as against him. He, however, made an alternative prayer to the effect that if he was bound in law to redeem those mortgages he may be given an opportunity to redeem them. The only contesting defendants were defendants 10 and 11. They disclosed Nirupama's mortgage and urged that the plaintiff was bound to redeem not only the second and the third mortgages but also Nirupama's mortgage, by paying to them the amounts due on these three mortgages. The learned Subordinate Judge by his decree dated the 30 April 1937, directed the plaintiff to pay to defendants 10 and 11 within a month of his decree the sums of Rupees 1673-6-0 and Rs. 12,375 on account of Nirupama's mortgage and the mortgage of the Sens respectively. On his paying the said sums of money to defendants 10 and 11 the plaintiff was to get a preliminary decree for sale for the total sum of the amounts thus paid to defendants 10 and 11 for redeeming Nirupama's mortgage and the mortgage of the Sens and the sum due to him on his own mortgage which was determined at the figure Rs. 6330-12-0. The learned Subordinate Judge found that Benode's mortgage was not enforceable against the plaintiff at the date of his suit. He accordingly did not allow defendants 10 and 11 to claim the dues on the said mortgage. Defendants 10 and 11 have not appealed for this part of the decree so we need not consider the claims under Benode's mortgage. The learned Subordinate Judge arrived at those figures in the following manner:

(2.) In view of the decision in Jnanendra Mohan V/s. Shorashi Charan ( 22) 9 AIR 1922 Cal 23 the method on which the redemption money in respect of Nirupama's mortgages and the mortgage of the Sens have been calculated by the Subordinate Judge cannot be supported. As the plaintiff was not a party to the suit instituted by those mortgagees for enforcement of their mortgages the amount payable by the plaintiff for redeeming those mortgages must be calculated not on the footing of those decrees or of the price paid by defendants 10 and 11 at the court sale but of the securities. Subject to statutory restrictions that amount must be outstanding principal together with interest calculated at the bond rates up to the date fixed for redemption. As the Bengal Money-lenders Act, 10 of 1940, has now come into force, the applicability of some of the sections of that Act has to be considered in this appeal in fixing the amount of the redemption money and in determining the plaintiff's claim on his own mortgage. The learned advocate appearing for the plaintiff, appellant urges three points before us. They are (1) that the plaintiff is not bound to redeem the first two mortgages, as the claims on those mortgages were barred by time at the date of his suit, (2) assuming that the plaintiff is to redeem those mortgages, defendants 10 and 11 must account for the profits they have obtained since they went into possession till the time for redemption fixed in this suit, (3) and that the amount of redemption money in respect of those two mortgages must be fixed in terms of Section 30, Bengal Moneylenders Act, 10 of 1940. The learned advocate appearing for defendants-respondents 10 and 11 besides contesting the aforesaid points urges an additional point, namely that the claim of the plaintiff on his mortgage must also be limited in terms of Section 30, Bengal Money-lenders Act, 10 of 1940. For the purpose of deciding the first question the following principles must be kept in view. If a mortgagee leaves out a puisne mortgagee or a person interested in the equity of redemption and obtains a decree, the security is not merged in the decree and extinguished. If a sale takes place in execution of the decree of such a defectively constituted suit, the purchaser at the court sale acquires the rights of the mortgagee plaintiff, and of the defendant mortgagor provided that the equity of redemption was not entirely unrepresented in that suit. Whether the purchaser would acquire the rights of the mortgagee plaintiff at the sale or not, where the equity of redemption was entirely unrepresented in the suit is a point on which there may be a difference of opinion.

(3.) In Dhapu Bai V/s. Chandra Nath the view has been expressed that the purchaser at the court sale in that case would not acquire even the mortgage lien of the plaintiff. In this case it is not necessary for us to express any opinion on that point. As the equity of redemption in the suit instituted by the Sens was not wholly unrepresented, the puisne mortgagee (the plaintiff) being only left out, defendants 10 and 11 through their benamidar (defendant 2) must be taken to have acquired the rights of the mortgagor and the mortgage lien of the Sens. By paying off Nirupama Devi they have acquired the mortgage lien of the latter on the principle of subrogation. The position therefore is that defendants 10 and 11 have acquired the rights of the first and the second mortgagees and the title of the mortgagor as it existed after the creation of the plaintiff's mortgage. The rights of the plaintiff as puisne mortgagee have not been destroyed by the court sale held in execution of the Sens mortgage decree. The first question in the form in which it has been raised by the learned advocate of the appellant, however, does not arise on the facts established in this case, for, neither the mortgage claim of Nirupama Debi nor that of the Sens was barred on 17 September 1935 when the plaintiff instituted this suit. Their mortgages are dated 10 June 1920 and 9 March 1923 respectively. Defendant 2, the benamidar of defendants 10 and 11, made payments to Nirupama in the year 1927 on the basis of a writing signed by him. The Sens mortgage was acknowledged in writing by the mortgagor on 17 March 1923, and thereafter the mortgagor made a payment on 11 November 1924, on basis of a writing signed by him. Hence on 17th September 1935, those two mortgagees claims were alive. The question as to whether the plaintiff was bound to redeem those two mortgages by paying money to defendants 10 and 11 has, however, to be considered in view of the form in which the decree has been made by the learned Subordinate Judge, for in his decree he has made the payment of the money due on those two mortgages a condition precedent to the plaintiff getting a decree for sale for the dues of his own mortgage.