NATHUMAL RAMPRATAP MARWADI Vs. GOVIND KADATAJI

JUDGEMENT

(1.) 1. This second appeal arises out of a suit brought on a mortgage executed in respect of three survey Nos. 4, 58/2 and 8/2 in Mouza Husenpur in Taluq Daryapur. The date of the bond is 4th September 1925. The defendants in the case are the mortgagor Govinda against whom the whole proceedings have been ex parte and Narayan who is an auction-purchaser of fields Nos. 4 and 58/2 at a sale in execution of the decree of one Tulsiram in Suit No. 1 of 1923. Narayan's defence is that the alienation by the judgment-debtor was void in that it was effected while the property was under attachment and that his title is valid as against the mortgagee. It will here be necessary to give some date and refer to facts which are undisputed between the parties, Govinda, the judgment-debtor and mortgagor of the fields, was considerably indebted and several suits were pending against him. One Vithoba had obtained a decree against him in civil Suit No. 74 of 1925 and in execution of his decree attached all the three fields on a date which has not been exactly ascertained but which it is admitted was prior to 6th August 1925, that is to say, before the execution of the mortgaged bond. In execution of that decree field No. 8/2 alone was brought to sale as the amount which it fetched was more than sufficient to satisfy the decree. The date of the sale is 21st October 1925 and it was confirmed on 16th November 1925.

(2.) TULSIRAM had obtained a decree against Govinda in Civil Suit No. 1 of 1923 in the Court of the First Class Subordinate Judge, Daryapur; Vithoba's decree was in the Court of the Second Class Subordinate Judge. Tulsiram attached the same property on 13th September 1925 i. e. after the date of the mortgage. As field No. 8/22 had already been sold and the assets of that sale had been made available for rateable distribution among other decree-holders against Govinda, all that remained for sale in these proceedings were fields Nos. 4 and 58-2 which were purchased by Narayan. The plaintiff contended that as this sale took place on the attachment of Tulsiram which was subsequent to the mortgage, his interest in the property was in no way affected thereby and that Narayan obtained in the auction sale only the judgment-debtor's interest in the field, that is to say, to equity of redemption. Narayan, on the other hand, contends that the attachment made by Vithoba enured for his benefit and that the mortgage being made subsequent to the attachment it is void.

(3.) BEFORE dealing with the question it will be well to dispose of the contention raised by the learned Subordinate Judge that the plaintiff has been guilty of fraud in this matter. It arises from the fact that the purchaser in Vithoba's execution was the plaintiff's joint brother and the learned Subordinate Judge has considered that the plaintiff was guilty of fraud by purchasing his field for an amount, which is considerably above its value, namely, Rs. 1,260 as opposed to Rs. 850, with the intention thereby of acquiring a paramount title in this field and leaving; the burden of the mortgage debt deliberately on the two remaining fields. I can see no force in this contention and the learned Counsel for the respondents has admitted that he cannot support-it. In the first place, the valuation of Rs. 850 of the field is the Court's own, and further, in an auction sale the purchase price may well be forced up to a point beyond that which the Court may consider to be the fair market value. The plaintiff was forced in his own interest to bid for this field since the mortgage which he had taken was manifestly subsequent to the date of attachment and if it were purchased by any one else his mortgage, by the terms of Section 64, Civil P. C., would be void and he would have lost his security entirely. Only one field was put up for sale as it was considered that the sale proceeds would be sufficient to cover the amount in Vithoba's decree, and this proved to be correct. Had Vithoba's decree been sufficiently large to warrant the sale of all three fields, then the plaintiff would have had to purchase them or see his security disappear entirely. In the circumstances it was fortunate for him that only one field was put up for sale, but the fact that only one field was put up and purchased by him can form no basis of an imputation of fraud against him. Whoever purchased Govinda's fields in Vithoba's execution purchased them free of the subsequent mortgage and it in no way affects the case whether the purchaser was the mortgagee himself or a third party. The learned District Judge disposed of the appeal in a very brief judgment. It runs as follows : The plaintiff's suit is based on a mortgage deed dated 4th September 1925 executed by Govinda. Govinda was the judgment-debtor in Suit No. 74 of 1925 in the Court of the Sub-Judge, Second Glass, Daryapur, and was also the judgment-debtor in Suit No. 1 of 1923 in the Court of the Sub-Judge First Class. The fields against which it is sought to enforce the mortgage were attached in the execution of Suit No. 74 of 1925 and subsequently mortgaged by Govinda. Subsequent to the mortgage they were attached in execution of Suit No. 1 of 1923. The Court of the Subordinate Judge Second Class Hold field No. 8/2 on 21st October 1925 but as the same property was under attachment by both Courts the proceeds of the sale were sent to the Sub Judge, First Class who sold the other two fields and rateably distributed the proceeds of all three fields. Defendant 2 Narayan purchased the two fields with which this suit on the mortgage is concerned in execution when the Sub-Judge, First Class had the fields sold. The question for decision is whether the purchaser, defendant 2, is bound by the mortgage. In my opinion he is in the circumstances of the case a representative of the decree-holders in both executions and is thus entitled to rely on the first attachment. Further in my opinion, the principle enunciated in Section 64, Civil P. C., is applicable to the similar, though not identical, procedure prescribed by Section 63 of the Code. The facts of the Privy Council Case Mina Kumari Bibi v. Bijoy Singh Dudharia AIR 1916 PC 288, which is relied on by the appellant appear to be entirely different. I agree with the decision in the lower Court and dismiss the appeal with costs.