RAMSHANKER SHANKER NATH Vs. GULAB SHANKER SHANKER NATH

JUDGEMENT

(1.) BOSS , A.J.C. 1. For the purposes of this appeal the facts may be stated as follows: Two cousins, Jaishanker and Shankernath, jointly owned a certain house. In the year 1918, one Dalchand obtained a simple money decree against Shankernath alone, and in execution attached the whole house. Jaishanker objected and on 26th March 1920 his half share in the property was released. But in spite of this, apparently through some mistake, the whole house was sold on 18th June 1921 and in due course the purchaser was placed in possession. It is admitted that this transaction was benami and that the real purchaser was defendant 2, who has the same name as the judgment-debtor, Shankernath. At the date of this sale defendant 2 already had an interest in Jaishanker's share in the house. It had been mortgaged to him, and on 4th April 1921 he had obtained a preliminary decree for sale. The decree was made absolute on 17th November 1921 but was never executed for obvious reasons. He already had possession of the property, and naturally did not want to lose it. In the execution proceedings he stated that he did not want the property to be sold and said he was content with a sum of Rs. 492-11-11 which was with the Munsif. This figure ap-pears to have been a mistake, for only Rs. 318-0.5 was handed over to him on 23rd February 1922. The case was then struck off as partly satisfied. These facts can be gathered from Ex. P-5, the order-sheet in the execution proceedings consequent on the mortgage decree. The right to execute the decree is now barred by time.

(2.) ON 7th June 1929 Jaishanker sold his half share in the house to the plaintiff. The present suit is for partition and separate possession as a result of this sale. It is admitted before me that defendant 2 obtained no title to Jaishanker's half share. But defendant 2 states he should be allowed to use his mortgage as a shield, and that he should be paid the balance due under his decree before he is made to hand over possession. The only question is whether this is possible now that his right to execute the decree is barred by time. It is argued that all rights under the mortgage are now merged in the decree and so the only right the decree-holder has is to execute the decree if he can. It is clear he cannot do that. The decree ceased to be operative when three years had elapsed from the date it became absolute and after that it became wholly ineffective: Het Ram v. Shadi Ram AIR 1918 P C 34. But that does not mean the rights under the mortgage are necessarily extinguished. When a lower security merges in a higher the rights under the former may sometimes revive for certain limited purposes if the latter becomes ineffectual. Of course no second claim would lie on the mortgage against the mortgagor or his successors in interest: to that extent the rights under the mortgage are extinguished by the merger: 13 Halsbury's Laws of England, p. 334, para. 469. But because the mortgagee can no longer wield his mortgage Us a sword it does not follow he cannot use it as a shield to protect his own interests.

(3.) THIS principal has been applied in other cases as well. A judgment does not extinguish a simple contract debt for the purpose of bankruptcy proceedings. The debt is still available as a petitioning creditor's debt: Bryant v. Withers 14 RR 609; Ex parte Griffiths 98 RR 95 and In re King & Beesley: Ex parte King & Beesley (1895) 1 QB 189. Nor does the obtaining of a judgment for a mortgage debt prevent the mortgagee from enforcing his security so long as the judgment remains unsatisfied: 21 Halsbury's Laws of England, p. 326, para. 579. An Irish case to the same effect is quoted by Fisher in his Treatise on Mortgage, 6th Edn., p. 795, para. 1559. The principle is again repeated in 18, Halsbury's Laws of England, p. 209, note (1884) 10 Cal 1035. Sir Rashbehary Ghose considers it applies in India also: Ghose on the Law of Mortgage in India, Vol. 1, 4th Edn. pp. 473 to 475. The ratio decidendi in Chaudhri Ahmad Bakhsh v. Baghubar Dayal (1906) 28 All 1, appears to be to the same effect. I am therefore of opinion that the mortgage security in the present case was not wholly extinguished by the unsatisfied decree.