JAMNA DAS Vs. RAM AUTAR PANDE

JUDGEMENT

(1.) THIS appeal arises out of a suit in which the plaintiff Lala Jamna Das claimed the sum of Rs. 30,009 together with interest. It appears that on the 2nd of June, 1913, one Musammat Lakhpati Kunwar made a mortgage in favour of Jamna Das. The mortgage consisted of zamiadari property and also mortgagee rights in other property. On the 21th of November, 1396, Musammat Lakhpati sold the entire mortgaged property, that is to say, the zamindari and the mortgagee rights, to the defendant Pandit Ram Autar Pande for the sum of Rs. 41,100 leaving Ra. 40,000 with the vendee for payment of the money due to Janma Das. On the 9th of February, 1900, Janma Das sued for sale of the mortgaged property.--After a considerable amount of litigation he got a decree, but only for the sale of the zamindari the mortgagee rights were excluded. The sale of the zamindari property being insufficient to satisfy the decree, the plaintiff, on the 7th of January, 1907, applied for a decree under section. 90 of the Transfer of Property Act, and after some further litigation obtained a decree against the judgement-debtors other than the present defendant. It is alleged that a balance of Rs. 33,009 still remained due. He now brings the present suit alleging that Pandit Ram Autar Pande was a trustee for him because Rs. 40,000 out of Rs. 44,000 was left in his hands for payment of the plaintiff s debt. There is no doubt that it was due to certain rulings of tins High Court that mortgagee rights were excluded from the original decree which Jamna Das obtained on foot of his mortgage, ever since the case of Ram Shankar Lal v. Ganeah Prasad (1907) I.L.R. 29 All. 385 was decided a mortgagee of mortgagee rights that is, a sub-mortgagee) is entitled to pursue his remedy and realize his debt out of the mortgage security, even though that security be mortgagee rights. In the case we have referred to the authorities were fully discussed and the Court unanimously overruled the case of Mata Din Kasodhan v. Kazim Husain (1891) I.L.R. 13 All. 432. The latter decision of this Court is supported by the provisions of Order XXXIV. in reality the present suit has been brought because the plaintiff failed to realize his debt in the appropriate way. In our opinion the real nature of the sale of the 24th of November, 1896, was a sale by Musammat Lakhpati to Pandit Ram Autar Pande for Rs. 4,000 subject to the mortgage of Rs. 40,000. In our Judgment it is absolutely clear that no trust was created in favour of the plaintiff , He was no party to the transaction and the sale did not in any way affect his rights to proceed against the property mortgaged to him. We consider that the decision of the Court below was quite correct and must be confirmed. We accordingly dismiss the appeal with costs.