RAKHOHARI CHATTARAJ Vs. BIPRA DAS DEY

JUDGEMENT

(1.) The plaintiff brought this suit to realize a debt secured by two mortgage-bonds executed by defendant No. 1 and by the father of the defendants Nos. 2 and 3. After the execution of those bonds, the property passed into the hands of defendants Nos. 4 and 5. Defendant No. 5 is the appellant here. That portion of the property, which is in his possession, was sold in execution of a money decree against the mortgagors in January 1897, and was again sold privately by the auction-purchaser to defendant No. 5 in January 1899. The plaintiff sought to realize by the sale of the mortgaged property not only the amount of the original debt, but also an amount which he had paid under the provisions of Section 310A of the Code of Civil Procedure to save the property from being sold in execution of a rent decree, while it was in the possession of the vendor of defendant No. 5, the payment being made a few days before the defendant No. 5 purchased the property.

(2.) The District Judge, on appeal, has decreed the plaintiff's claim. It is urged in the first place by the learned pleader, who appears for the appellant, that the District Judge has fallen into an error in finding that the bonds in suit were executed for valuable consideration. The finding is based partly on the oral testimony of the plaintiff himself and partly on some account books. Now these account books were not produced until after the case both of the plaintiff and the defendant had been closed; and, though the plaintiff in his evidence stated that he had the account books both of his own and of his father's time, he was not recalled to prove that the account books, which he subsequently filed, were those to which he referred in his evidence. Undoubtedly this defect in the chain of proof does exist. But we find from the list of documents prepared in the Munsif's Court that the account books were admitted without objection; and though one of the grounds of appeal before the District Judge was that there had been no proof of these documents, we do not find in the judgment appealed from, a single word to show that this objection was pressed before him. The defect was apparently regarded as of a formal nature. If the objection had been pressed before the District Judge it would have been very easy for that. Court to have remedied the defect by calling the plaintiff and requiring him to testify formally whether the books which he produced in Court were those to which he referred in his deposition before the Munsif. We are, therefore, of opinion that this objection pressed in this Court for the first, time is without substance and that it should not be upheld.

(3.) The next objection taken to the judgment under appeal is that the District Judge was wrong in allowing the plaintiff to add to his mortgage debt the amount which he had paid to save the property from being sold in execution of a rent decree. It is clear that the payment was made under Section 310A of the Civil P. C., and, therefore, Section 171 of the Bengal Tenancy Act has no application. The charge, too, cannot be supported by the provisions of Section 72 of the Transfer of Property Act. These provision of law, however, though they enumerate certain cases in which payments made to save property from sale for arrears of revenue or rent may be secured by a charge on the property, do not profess to be exhaustive. The point now before us was considered in Upendra Chandra Mitter V/s. Tara Prosanna Mukerjee (1903) I.L.R. 30 Calc. 794 and it was there held that a mortgagee making payments to save a mortgaged property from being sold for arrears of revenue has, according to the general principles of justice, equity and good conscience, a lien on the property for the sums so paid by him. We think it right to follow the principle laid down in that case; and we are, therefore, of opinion that the District Judge was not in error in allowing the plaintiff to add to his mortgage debt the amount which he had paid to save the property from being sold in execution of the rent decree.