BALWANT Vs. MANOHARDAS RANGILDAS

JUDGEMENT

(1.) PLAINTIFF -Respondent No. 1 which is a firm of Rangildas Wallabdas sued on the basis of a mortgage dated 12-6-16 executed by Defendant No. 1 for recovery of the debt due thereunder by sale of the mortgaged house. The present appellant was impleaded as Defendant No. 2 on the ground that he was a subsequent auction-purchaser of the property covered by the mortgage. This auction sale had taken place on 13-11-20 in execution of a mortgage decree obtained by one Ratanlal upon a mortgage dated 5-4-1917 executed by Defendant No. 1. The Defendant No. 1 appeared in the Court of first instance and admitted the plaintiff's claim in full. Defendant No.

(2.) DENIED the plaintiff's mortgage and put him to proof of the same. He pleaded in the alternative that though he was an auction-purchaser under the decree based on Ratanlal's later mortgage, he was entitled to fall back upon the prior mortgage of Nawarangrai Pannalal of 1914 satisfied by Ratanlal out of the consideration of the mortgage of 1917 and that the plaintiff could not claim to sell the property without redeeming him. Plaintiff in his turn denied the execution of the mortgages of 1914 and 1917 and urged that he was not bound to redeem the prior mortgage of Nawarangrai Pannalal even if it be held that it was prior to his own and was satisfied as alleged. 2. The plaintiff's mortgage was held to have been duly executed and attested, whereas as regards the mortgages of 1914 and 1917 it was held that their execution was not proved. As regards the plea of satisfaction of the mortgage of 1914 out of the consideration of the mortgage of 1917 it was held that the mortgagee Ratanlal did not pay off mortgage of Nawarangrai but that the Defendant No. 1 borrowed the amount from Ratanlal and himself redeemed the mortgage of Nawarangrai by payment of Rs. 3,854, and that consequently the case was not covered by Section 74 of the Transfer of Property Act. In this view of the case the first Court held that the Defendant No. 2 could represent only the subsequent mortgagee Ratanlal and not the prior mortgagee Nawarangrai and as such was not entitled to be redeemed. The plaintiff was accordingly granted a decree for sale of the mortgaged property under Order 34, Rule 4, Civil P.C.

(3.) IT is urged that the Courts below have unnecessarily called for proof and gone into the question of the existence and validity of the prior mortgage of 1914 in view of the fact that the plaintiff although expressly invited to redeem the prior mortgage refused to do so and failed to ask for an amendment of the plaint so as to convert his suit for sale into one for redemption of the prior mortgage also. I think this contention must prevail. What is meant by this contention is that whatever decision has been given in this case should be treated as wholly unnecessary for the proper adjudication of the suit as laid and therefore not binding as between the parties, inasmuch as, under law, it is open to a second mortgagee to sue for and obtain a decree for sale of the property covered by his own mortgage without impleading the prior mortgagee of the same property; the effect of a decree based on a 2nd mortgage is only to direct sale of such rights of the mortgagor as existed at the date of that mortgage, the rights of the prior mortgagee being in no way affected by it. The property is necessarily sold subject to the pre-existing rights under the prior mortgage. This was really the simple nature of the plaintiff's suit and would have also been the scope of the decree he asked for in the plaint. If he had reason to think that the prior mortgage of 1914 was either non-existent or fictitious or invalid for any reason, it was open to him to challenge it and he might have framed his suit differently and asked that a decree directing sale of the property free of the so-called prior encumbrance be passed in the suit, and in that case, if the defendant who 'relied upon the prior mortgage had failed to prove it, the plaintiff would have been entitled to a decree directing the sale of the property free of the prior encumbrance. But as such is not the case here, the adjudication is wholly unnecessary. Merely because the parties have chosen to go into the matter of the existence of the prior mortgage and the Court inadvertently decided it, the present suit has not and cannot be deemed to have been converted into a combined suit for sale and redemption, inasmuch as there is no amendment of the plaint or. payment of the necessary Court-fee to cover such reliefs. The decision in a suit must ordinarily depend upon the nature of the relief asked for in the plaint. In the absence of any amendment of the plaint I am not prepared to go to the length of holding that the plaintiff intended to ask for or the Court was empowered to grant a decree directing sale of the property free of the prior mortgage of 1914 which is really the effect of the present decision. If the parties had been careful enough, at the earlier stage of the case, the scope of the suit could and would have been defined with precision, and the defence based on the prior mortgage left over for future adjudication and the unfavourable decision avoided, unless the plaintiff had secured the leave of the Court to amend the plaint and asked for the appropriate relief, namely, that the property be sold for satisfaction of not only his own mortgage but also of the prior mortgage, he may have to redeem, or, in the alternative, that the property be sold to satisfy his mortgage free of the first mortgage in the event of the same not being established or being found to be invalid : of Laxman v. Janoo A.I.R. 1924 Nag. 429.