N C LAKSHMIKUTTI AMMAL Vs. VMARIATHUMMAL ALIAS THITHUMMA

JUDGEMENT

(1.) Appeal from the appellate order of the Court of the Subordinate Judge of Palghat (in E.P. No. 1742 of 1919 on the file of the Court of the District Munsif of Chowghat). There was a mortgage with possession and lease back on the same day. The appellant sued on the lease and obtained a decree and is attempting to bring the property to sale. The respondent resists, contending that such sale is contrary to the provisions of Order 34, Rule 14 of the Civil Procedure Code. The lower Courts have upheld this contention, hence the appeal.

(2.) I agree that the two documents in question Exs. A and B must be treated as one. In Ex. B, it is agreed that arrears shall be paid by the sale of the equity of redemption, which appellant points to as marking a difference between the two transactions, but I do not consider that is sufficient to justify their being treated as separate documents. Once the two documents are treated as one it must, I think, be taken as settled law (as observed below the Calcutta rulings seem to be contradictory) that although the mortgagee may obtain a decree for rent on the lease document alone, nevertheless his claim is one arising under the mortgage and within the mischief of Order 34, Rule 14. This has been ruled in terms in Ibrahim Walad Goolam V/s. Nikalchand (1919) ILR44B 366 which is followed in Raichand Kirparam V/s. Ranchhoddas Manchharam (1920) ILR 45 B 174. Gobinda Chandra Pal V/s. Kailas Chandra Pal (1917) ILR 45 C 530 is to the same effect, as also the cases cited by the lower appellate Court Kadma Pasin V/s. Muhammad Ali (1919) ILR 41 A 399. Appellant would distinguish this latter case on the ground that the mortgagor had merely contracted to collect the usufruct for the mortgagee, but I doubt if this affects the question, which turns on the actual contract effected between the parties and not on the motive which induced them to make such a contract. The appellant relies strongly upon the ruling in Uttam Chandra Daw V/s. Rajkrishna Dalal (1919) ILR 47 C 377(FB) the language of which on page 405 undoubtedly helps him. But in Ashutosh Sikdar V/s. Beharilal Kirtania (1907) ILR 35 C 61 it is found that a sale in contravention of Section 99 of the Transfer of Property Act is irregular and voidable, and " the mortgagee is prevented from bringing the mortgaged property to sale in execution of a decree for the satisfaction of any claim related or extraneous to the mortgage " page 67.

(3.) It is next argued that the above plea is not open to the respondents, because without raising this plea, they submitted to prior execution proceedings which terminated in attachment and permission to the decree-holder to proclaim and sell by fresh petition.