BARHU MAHTO Vs. SRIMATI JASODA DEVI

JUDGEMENT

(1.) This is an appeal by defendants 19 and 20 in a suit brought by the plaintiff to enforce a mortgage bond said to have been executed by defendant 1 on 31st August 1928, in respect of 7 annas 6 pies share in village Kapka in favour of defendant 23. This defendant 23 who is admittedly the hus band of the plaintiff assigned his interest under the mortgage to the plaintiff on 28 June 1937. On the basis of this assignment, the present mortgage suit was instituted by the plaintiff on 10 February 1940. The appellants resisted the suit mainly on the ground that they had a prior charge and the suit could be decreed only subject to that charge. In order to understand this defence it will be necessary to refer to certain facts. It appears that In 1926 the appellants (defendants 19 and 20) instituted two money suits against defen-dant 1 and his three brothers. It may be statecl here that defendant 1 admittedly owned 7 annas 6 pies share and the three brothers had 1 anna 6 pies each in village Kapka. In 1927 a compromise decree was passed in the two money suits for a certain sum of money which under the decree was payable by a series of instalments. One of the provisions in the compromise decree was that on the failure of the defendants to pay three consecutive instalments it would be open to the decree-holders to realise the entire decretal amount by execution. Another provision which the decree contained was that the amount for which the decree had been passed would be a charge on the 12 annas share of the defendants in village Kapka. After this decree several execution proceedings were started by the appellants. One of them was started in the year 1931 and on this occasion a petition was filed by defendant 23, that his mortgage of 1928 should be notified in the sale proclamation. Subsequently the Court directed that the property may be sold subject to his mortgage. The execution proceedings, however, were ultimately dismissed for default. Another execution proceeding was started in the year 1933 and in this case defendant 23, who had in the meantime purchased 1 anna 6 pies share in village Kapka in execution of a money decree, preferred a claim under Order 21, Rule 58. This claim was allowed, but the question of the priority of his mortgage was left open. In 1935, a third execution proceeding was started and on this occasion 10 annas 6 pies share of village Kapka was purchased by the appellants in execution of their decree on 3 September 1936. The appellants claim that the charge which was created by the compromise decree is still alive and can be used as a shield against the plaintiff's mortgage suit. In other words, it is said by the appellants that the plaintiff cannot get the possession of the property in their possession unless they redeem their charge.

(2.) Several questions of law were debated in the Courts below and have been discussed in the judgments delivered by them respectively. The first substantial question was whether the order passed in the execution proceedings of 1931 directing that the properties advertised for sale in that proceeding might be sold subject to the mortgage of defendant 23 precludes the appellants from claiming priority on the basis of the charge created by the compromise decree. The learned Subordinate Judge (the lower appellate Court) has taken the view that this order was passed under Order 21, Rule 62, and as no suit was instituted by the appellants within a year of the date of the order, that order became final and inasmuch as the appellants have purchased the property in execution of the compromise decree subject to the plaintiffs mortgage, the defence raised in this suit on their behalf is not open to them. It seems to me, however, that in the first place, it is doubtful whether the order passed by the executing Court can be treated as an order under Order 21, Rule 62 and in the second place, even assuming that it was an order made under Order 21, Rule 62, the point which found favour with the lower appellate Court is not one of very great substance. It has been contended by Mr. Brahmdeo Narain that it was open to the appellants to execute their decree as a money decree and to keep the charge alive. The decree was executed as a money decree and therefore in that execution the appellantsdid not object to an order directing that the property might be sold subject to the mortgage; but that would not have the effect of extinguishing the charge. It seems to me that the contention has some force and must be allowed.

(3.) There is, however, another substantial question which is involved in this appeal and that arises on the language of Section 100, T. P. Act. The amended section after explaining what a charge means states that save as otherwise expressly provided by any law for the time being in force no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge. This amendment was made in 1929. The charge was created in the year 1927. The question therefore to be decided is whether Section 100 is retrospective. It was held in Tika Sao V/s. Hari Lal A.I.R. 1940 Pat. 385 that Section 92, T. P. Act, as amended in the year 1929 was retrospective. This view was arrived at on a construction of Section 63 of Act 20 of 1929, by which Act certain sections of the old Transfer of Property Act were amended. The reasons which weighed with the Full Bench in holding that Section 92 was retrospective apply to Section 100 also. Therefore 8. 100 must be held to be retrospective. Mr. Brahmdeo Narayan relied upon Faqir Chand V/s. Aziz Ahmad , M.M.R.M. Chettiar Firm V/s. S.R.M.S.L. Chettiar Firm and Madhoram Sand V/s. Kirtya Nand Sinha to show that some of the relevant sections were not held by the Privy Council to be retrospective, but the point as to what would be the effect of Section 63 of Act 20 of 1929, was not discussed or considered in those cases.