C SRINIVASA ROW SAHIB Vs. YEMUNABHAI AMMAL

JUDGEMENT

(1.) The 1 and 2nd respondents hereinafter referred to as respondents were prior mortgagees of the property ordered to be sold by the Lower Court.

(2.) In the plaint in the case, the plaintiffs stated that they were subsequent mortgagees, that the respondents were impleaded as they held a prior mortgage and expressly prayed inter alia that in default of payment of the money due to them under their mortgage, the mortgaged property should be sold subject to the prior mortgage. The appellants who were the other defendants in the case being mortgagors or persons claiming through them also admitted in their written statement the prior mortgage in favour of the respondents. There was thus no matter in dispute either between the plaintiffs in the suit and the respondents or between the latter and their co-defendants. In this state of things the Court in giving the decree for sale in favour of the plaintiffs made no reservation therein in respect of the respondent's prior mortgage. It was argued that, in the absence of any such reservation in the decree it is imperative on the Court to sell the property on the footing that the respondent's mortgage was nonexistent and to apply the proceeds in payment of the plaintiff's mortgage and pay the remainder to the mortgagors themselves.

(3.) Now, Section 85 of the Transfer of Property Act, no doubt, requires all parties having an interest in the property comprised in the mortgage being included in any suit on the mortgage. It is open to doubt, however, whether a suit in which all the parties admit the existence of and intend to raise no question about a prior incumbrance in favour of a person not impleaded in the suit is liable to be dismissed as one framed in contravention of the section. Assuming that, even in such circumstances Section 85 requires the prior incumbrance to be brought before the Court in the suit, we do not think that there is anything in the provisions of the Transfer of Property Act which requires that the decree in the suit should in terms reserve his right and order the sale to be subject to them. Section 96 of the Act does not militate against the view. In laying down that, property subject to a prior mortgage may be sold by 3ourt free from the same with the consent of the prior mortgagee, the section does not necessarily imply that when the property is not to be sold free from such incumbrance the decree should under all circumstances expressly reserve the prior mortgagee's rights. No doubt, where any contest arises between a prior mortgagee-plaintiff and a prior mortgagee- defendant or a contest between a mortgagor and prior mortgagee who are co-defendents1, which it is necessary to decide in order to give relief to the plaintiff, such contest should be adjudicated upon and the decree framed with reference to the adjudication. But where the right of parties to the suit such as the respondents is admitted on all hands and further the person claiming relief asks for the relief subject to such admitted right, the Court would, of course, be going out of the way in granting a larger relief than he prayed for; and indeed there is no necessity to construe the decree in the present case as granting what the plaintiffs themselves did not ask. No doubt, to avoid misconceptions the decree might have been in the terms of the prayer of the plaintiffs themselves; that is to say, the mortgaged property be sold subject to the prior mortgage in favour of the respondents. The proper course to be observed in drawing up a decree is certainly that pointed out in Lachminarain V/s. Jwala Nath (1896) I.L.R. 18 A. 347. Still in construing a decree admissions in the pleadings or in the course of the case should not be ignored and the decree taken as negativing any right which was conceded by all parties with reference to which the Court was not called upon to make any adjudication and in respect of which there was no necessity for the Court to make reference in terms in the decree, provided such a construction does not infringe any statutory provision. It was in consonance with this view that the plaintiffs, the subsequent mortgagees consented to the sale taking place as applied for by the respondents and the sale-proceeds being applied in the first instance towards the discharge of the prior mortgage. The contention of the mortgagors is therefore on the face of it unsustainable.