NAROTAM DAS Vs. SANWAL DASS

JUDGEMENT

(1.) This is an appeal from the decree passed by the Second Additional Subordinate Judge of Jaunpur upholding the decree passed by the Munsif of Shahganj in a suit brought by the plaintiff-respondent for redemption of certain property. It is no longer in dispute that the original proprietor was one Mohammad Malik who executed a deed of usufructuary mortgage on 19 September 1898 in favour of Deonandan Dube. The latter was in possession of the mortgaged property. The heirs of Mohammad Malik subsequently executed a deed of simple mortgage on 19 September 1900 in favour of the plaintiff-respondent. Deonandan was dispossessed some time before 1911 and sued the heirs of the mortgagor for recovery of his mortgage money by sale of the mortgaged property. A decree for sale was passed and the mortgaged property was sold in execution of that decree. The appellant was declared to be the purchaser and obtained delivery of possession on 16 August 1922. In the meantime the plaintiff, the subsequent mortgagee, instituted a suit for the forcement of his mortgage, obtained a decree for sale and purchased the mortgaged property himself. The prior mortgagee had not impleaded the plaintiff as a party to his suit nor did the plaintiff implead the prior mortgagee in his suit. It was not necessary for the puisne mortgagee to make the prior mortgagee a party though it was necessary for the latter to implead him in his suit. The puisne mortgagee then instituted the suit which has given rise to this appeal for redemption of the prior mortgage and for recovery of possession of the mortgaged property. Both the Courts below decreed the plaintiff's suit for redemption.

(2.) It is argued on behalf of the appellant, the auction-purchaser, in the prior mortgagee's suit that the plaintiff-respondent's suit for redemption is barred by 12 years rule of law. It is said that the appropriate article applicable in such a case is Art, 132, Schedule 1, Lim. Act, and that the period of 12 years is to be reckoned from the date of the subsequent mortgage. The logical result of this contention is somewhat startling. If the prior mortgagee had not instituted his suit without impleading the puisne mortgagee and if the latter had instituted a suit for redemption while the prior mortgagee was in possession, he had 60 years time reckoned from the date of the prior mortgage. If the appellant's contention is correct, the prior mortgagee could materially vary the right of the subsequent mortgagee so far as limitation is concerned by instituting a suit and obtaining a decree behind his back so that the subsequent mortgagee, if he is driven to a suit for redemption not against the prior mortgagee but the auction-purchaser, has only 12 years reckoned from the date of his own mortgage. The right of the subsequent mortgagee to redeem the mortgaged property, where it has been sold at the instance of the prior mortgagee in a suit to which the puisne mortgagee is no party, is well established in this Court. It has been repeatedly held that the right of the puisne mortgagee to redeem is not affected by anything done in the prior mortgagee's suit to which the puisne mortgagee was no party. In Nannu Mal V/s. Ram Chander 1931 All 277 it was held that the auction-purchaser in a prior mortgagee's suit to which the subsequent mortgagee is no party acquires the right of the mortgagor. It has been recognised in numerous other cases tbat the puisne mortgagee's right to redeem the prior mortgage is not affected by the sale and that he can redeem the prior mortgage, treating the auction-purchaser as the prior mortgagee. Another Pull Bench case of Ram Sanehi Lal V/s. Janki Prasad 1931 All 466 discusses practically the whole case law of this Court on the point. Applying the rule deducted! from this and similar other decisions of this Court, it seems to me that the auction purchaser is to be deemed as the assignee of the mortgagor's right and of the prior mortgagee's right. The subsequent mortgagee can redeem the prior mortgage from him. It will, of course, be open to the auction purchaser to re-deem the subsequent mortgagee himself, if he so likes provided there is no other impediment. But this circumstance cannot deprive the puisne mortgagee of his right to redeem the prior mortgage so long as he himself is not redeemed.

(3.) So far as the appropriate article of the Limitation Act is concerned, I do not think Miait any other article than Art. 148 can apply. If the auction purchaser is to be treated as the assignee of the prior mortgagee's rights as in my view he should be taken to be where the puisne mortgagee was not made a party to the prior mortgagee's suit, Art. 148 in terms applies. The assignee of a mortgagee is "mortgagee" within the meaning of that article. Indeed according to Ashfaq Ahmad V/s. Wazir Ali 14 All 1, even a suit by a co-mortgagor for redemption of his share against another co-mortgagor who had previously redeemed the entire mortgage is governed by Art. 148, This view is based on the assumption that the redeeming co-mortgagor steps into the shoes of the mortgagee and should be regarded as the mortgagee. A fortiori the assignee of the mortgagee rights must be considered by the mortgagee for the purposes of Art. 148. In this view the period of limitation is clearly 60 years reckoned from the date of the prior mortgage.