ABHARAN SINGH Vs. LAL BAHADUR SINGH

JUDGEMENT

(1.) The material facts connected with this appeal are as follows : - On the 11th of June, 1881, Amir Singh and Musammat Dulra Kunwar executed a usufructuary mortgage of certain zamindari property in favour of Rani Dharam Raj Kuunwar. The real mortgagor was the said Amir Singh. Possession of the sir land was not given in accordance with the provisions of the mortgage deed and the Rani brought a suit against the mortgagors for possession and mesne profits. She obtained a decree, and in execution, for mesne profits and costs, the mortgaged property was attached, put up to sale and purchased by the Rani. The sale was subsequently confirmed and the usual certificate issued. Lal Bahadur Singh now represents the estate of Rani Dharam Raj Kunwar. The plaintiffs are the grandsons and great grandsons of Amir Singh and they have brought the present suit for a declaration that the auction sale mentioned above is null and void and that they are still entitled to redeem the mortgage. There is a further claim for a declaration that the plaintiffs, or some of them, are in any event ex-proprietary tenants of the sir land.

(2.) It seems to me that the only question we have to decide is what is the effect of Section 99 of the Transfer of Property Act, which was in force at the date of the purchase by Rani Dharam Raj Kunwar. It has not been contended that, if the Rani had never occupied the position of mortgagee, and if she had obtained a simple money decree and in execution of such decree purchased the property, the plaintiffs, who are the grandsons and great grandsons of Amir Singh, could now set aside the sale and get possession of the property. The contention is that the sale was in contravention of the provisions of Section 99 of the Transfer of Property Act and therefore null and void. In my opinion this case must be disposed of on the assumption that the plaintiffs have exactly the same rights that Amir Singh would have had if he had brought the suit instead of them. Section 99 is as follows: Where a mortgagee in execration of a decree for the satisfaction of any claim, whether arising under the mortgage or not, attaches the mortgaged property, he shall not be entitled to bring such property to sale otherwise than by instituting a suit under Section 67.

(3.) It seems to me that the decision depends on whether a sale at the instance of a mortgagee in contravention of the section was wholly illegal. If it was, then the equity of redemption never vested in the Rani and the mortgage is still capable of being redeemed. Section 99 has been repealed and new provisions have been substituted in the Code of Civil Procedure. Order XXIV, rule 14), of the first schedule is as follows: Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgage property to sale otherwise than by instituting a suit for gale in enforcement of the mortgage.