GOVINDA BHATTA Vs. NARAINA BHATTA AND 5 ORS

JUDGEMENT

(1.) WE think that the decrees of the Courts below are nor correct. The question that is raised in this case has to be determined with reference to Section 99 of the Transfer of Property Act read with Section 67. No doubt if the attachment had been made on account of the mortgage money itself decreed in a suit which was not brought for the sale of the mortgaged property then the suit would be, and should be, one upon the mortgage under Section 67. The present suit, however, is one where the plaintiff has no right to sue upon the mortgage held by him it, being a usufructuary mortgage. The claim which he has to enforce is one which arose independently of the mortgage and in respect of which he has attached the interest of the mortgagor. As under Section 99 he cannot enforce this claim without a further suit for sale, it follows that he is entitled to maintain a suit for that purpose. Having regard to the object of Section 99 the decree to be made in such a suit should not be merely for the sale of the equity of redemption but should be for the sale of the property free from the mortgage claim of the plaintiff, and the sale proceeds should be applied in the first instance to the discharge of the mortgages on the property in the order of their priority, and the surplus, if any, towards the satisfaction of the plaintiff's claim under the attachment so far as may be necessary.

(2.) THE cases of Jadub hall Shaw Chowdhry V/s. Madhub Lall Shaw Chowdhry I.L.R. 21 C. 34 Azim Ullah V/s. Najam Unnissa I.L.R. 16 A. 416 and Mahabir Singh V/s. Saira Bibi I.L.R. 17 A. p. 520 are distinguishable from the present case, since in none of them was there a subsisting attachment entitling the plaintiff to sue under Section 67. It appears from the District Munsif's judgment that the plaintiff offered to amend his plaint so as to enable the court to pass the proper decree as indicated above. We think that this should have been allowed. We, therefore, set aside the decrees of the Courts below and remand the suit to the District Munsif's Court for disposal according to law. If the stamp paid by the plaintiff is not sufficient for the plaint when amended, the extra stamp duty should be levied. Costs in this and in the lower appellate Court will be costs in the suit.