JAGAT CHANDRA DE Vs. ABDUL RASHID

JUDGEMENT

(1.) The facts which are relevant for the purposes of the present appeal and which are in dispute now are as follows: One Dasarath De, who is defendant 6 in the present suit, mortgaged the disputed land to the father of the plaintiff and the proforma defendants 7 and 8 and the husband of pro forma defendant 9 on 20 Sraban 1274 M.E. corresponding to 4th August 1912. The plaintiff and the pro forma defendants brought a suit on their mortgage on 9 July 1920. Usual mortgage decree for sale was passed on 8 September 1923 and the property was purchased by the plaintiff on 8 May 1924. The same mortgagor, that is defendant 6, mortgaged these very lands to one Lakshi Charan Saha on 21 Chaitra 1274 corresponding to 5 April 1913. Lakshi Charan Saha's son Prasanna Kumar Saha sued on his father's mortgage on 2 June, 1919 and obtained a decree on 11 September 1919 in execution of this mortgage decree. Defendant 2 purchased the property in execution of the mortgage decree on 2 February, 1922, and obtained possession of the lands through Court. The plaintiff after his purchase on 8 May 1924 could not get actual possession. On 13th December 1927 he raised the present suit for recovery of khas possession of the lands which he purchased on declaration of his auction-purchased right in the lands. The defence of defendant 2 was that the plaintiff was not entitled to any relief in the suit, in view of the fact that neither he nor the second mortgagee was impleaded as parties in the mortgage suit instituted by the plaintiff in the year 1920. The trial Court accepted the defence of defendant 2 and dismissed the suit. On appeal the learned Judge has reversed the decision of the trial Court and has passed the following order The case is remanded to the Court below for enabling defendant 2-to redeem the prior mortgage of the plaintiffs father in accordance with the observations as above made. If defendant 2 exercise his right of redemption in pursuance of the Court's order, the suit will fail, but if he does not do so, the suit will succeed and the plaintiff will be given possession of the suit lands by ousting him (defendant 2) and the other defendants if in possession.

(2.) Hence the present appeal by defendant 2. The points for determination in this appeal therefore are (1) whether the plaintiff can claim possession of the property as against defendant 2, and (2) whether defendant 2 is bound to redeem the plaintiff in view of the events that have happened in this case. The principle is now well established that persons who have taken transfers of property subject to a mortgage cannot be bound by proceedings in a subsequent suit between the prior mortgagee and the mortgagor to which they were never made parties: See Umesh Chandra Sircar V/s. Mt. Zahoor Fatima (1890) 18 Cal 164.

(3.) Defendant 2 is therefore not bound by the proceedings in the suit instituted by the plaintiff and his right cannot in any way be affected by the sale which was held in execution of the decree passed in that suit. Now what are the rights of defendant 2 on the basis of his purchase at the auction-sale held before the plaintiff purchased this property. It cannot be disputed now that a purchaser at a sale in execution of a mortgage decree gets the mortgagee's rights as well as the rights of the mortgagor and after the mortgagor's interest has once passed away to a purchaser, that interest cannot again be sold effectively: See Moti Lal v. Karrab-ul-din (1897) 25 Cal 179. The rights of the mortgagor vested in defendant 2 before the plaintiff's purchase and consequently he became entitled to possession before the plaintiff purchased at the auction-sale in execution of the decree obtained by him on the basis of his first mortgage. Consequently, the plaintiff cannot claim the mortgagor's right on the basis of his purchase. Again the purchase by the plaintiff cannot affect defendant 2's purchase of the mortgagor's right, that is, the equity of redemption, inasmuch as the suit by the first mortgagee was started after the second mortgagee had obtained his decree. In other words the plaintiff is bound by the doctrine of lis pendens and cannot claim the mortgagor's rights.