UPENDRA NATH SAMANTA Vs. SARODA PROSAD GHOSE

JUDGEMENT

(1.) This appeal arises out of a mortgage suit-a suit instituted for enforcement of a mortgage bond. The facts which are relevant for the purpose of the present appeal were briefly these. On 4 May 1913 one Nitai executed a mortgage bond in favour of Sarada, one of the two sons of Baikantha. In May 1918 Nitai executed another mortgage in favour of defendants 13 to 16. Before May 1918 Sarada's brother Narendra brought a suit against Nitai for recovery of some money due on promissory notes from Nitai and obtained a decree against him. In this decree it was held that the suit had been for both the brothers Sarada and Narendra. This decree was executed and in execution the properties mortgaged were put up to sale and purchased by the decree-holders who were both Sarada and Narendra. This was on 23rd November 1918. Since their purchase, the brothers have been in possession of the property in undivided shares. In May 1928 defendants 13 to 16 instituted a mortgage suit on their mortgage bo May, 1918 and obtained a decree the same month. In this mortgage suit against Nitai defendants 13 to 16 impleaded Narendra, but not Sarada. A few days before a decree was obtained in this mortgage suit, Sarada instituted a suit on his mortgage bond dated 4 May 1913 making defendants 13 to 16 and Nitai as defendants in the suit and it is this suit by Sarada that has given rise to the present appeal.

(2.) The substantial defence in the case was that after the two brothers Sarada and Narendra had on 23 November 1918, purchased the equity of redemption, the mortgage debt dated 4 May 1913, was extinguished and Sarada's mortgage was not subsisting at the time the suit was instituted. This defence found favour with the trial Judge and the Court of first instance dismissed the suit. This decision was however reversed on appeal and the lower appellate Court gave a decree to the plaintiff. Defendants 13 to 16 have appealed to this Court. The point involved in the present appeal is a short one. The admitted facts and the facts that have been found are these. The plaintiff Sarada is the sole owner of the mortgage of 1913. In 1918 he with his brother Narendra jointly purchased the property mortgaged in execution of a money decree and since than, the plaintiff has been in possession of an undivided share in the same. The question is whether in these circumstances the plaintiff's suit for a mortgage decree on the basis of his mortgage bond of 1913 was maintainable or, in other words, whether the mortgage debt should be treated to have been extinguished.

(3.) On behalf of the appellants the contention before us was twofold. In the first place, it was said that the mortgage debt was extinguished and, in the second place, it was contended that even if it was not extinguished and the mortgage debt was subsisting, the plaintiff Sarada in the circumstances of the case could use his mortgage as a shield for his protection against subsequent mortgages, but not to enforce his own mortgage. Neither of these two contentions seems to me to be well founded. As regards the first contention, the law on which it is based is the old Section 101, T. P. Act. A plain reading of the section will however show that it is not applicable to the present case. Section 101 reads thus: Where the owner of a charge or other encumbrance on immovable property is or becomes absolutely entitled to that property, the charge or encumbrance shall be extinguished unless he declares, by express words or necessary implication, that it shall continue to subsist, or such continuance would be for his benefit.