KRISHNA CHANDRA DHAR Vs. BIPIN BEHARI PADHI

JUDGEMENT

(1.) This is an appeal from an order of the Subordinate Judge in an execution case. There was a certain tauzi No. 924 in the Balasore Collectorate in which separate accounts had been opened and there was a residuary share of 4 as. 7p. and odd and within this residuary share certain judgment-debtors had a 5p. 12 1/2 share. This share had been mortgaged to one Bipin Behari Padhi and Bipin Behari Padhi got a mortgage decree against this share for sale. Subsequent to the mortgage, the judgment-debtor No. 5 in the mortgage suit, Krishna Chandra Dhar, had purchased the 5p. 12 1/2 share and he was accordingly made a defendant with defendants 1 to 4 and the decree was against him also. The decree only affected him in so far as it was a decree for the sale of the mortgaged property. The 4 as. 7p. residuary share in the estate which had included the mortgaged property was sold for arrears of revenue and in the circumstances by reason of Section 54 of the Revenue Sale Law the sale was subject to the mortgagee's right in respect of the 5p. 12 1/2 share out of the property gold in the revenue sale. The property sold at the revenue sale was bought by Biswanath Paida on 14 September 1932 and the sale realised more than the amount of the revenue debt with the result that the surplus sale proceeds amounted to Rs. 22,662. The share of the judgment-debtor No. 5 out of this sum amounted to Rs. 2307-3-10. Now Bipin Behari Padhi before executing his mortgage decree by putting up the mortgaged property to sale made an application for the attachment of the sum of Rs. 2307-3-10, the share of the surplus sale proceeds attributable to this particular part of the property and withdrew that amount and then proceeded in execution to sell the mortgaged property and that sale has since been carried through.

(2.) Now certain facts are clear and beyond dispute. First of all it is clear that the revenue sale was in circumstances such as that the mortgagee was not deprived of his security, his mortgage was not affected by the revenue sale at all, and therefore, his security remained undiminished. Bipin Behari however justifies his attachment of the surplus sale proceeds amounting to Rs. 2307-3-10 by virtue of Section 73, T.P. Act, and the learned Subordinate Judge was of opinion that he had the right by reason of that section not merely to realise his security by means of his mortgage decree for sale, but also that he had the right to proceed against the surplus sale proceeds.

(3.) Now Section 73, T.P. Act, creates no new law, but merely gives effect to the old law of substitution. The amendment of the Act which was effected by Act 20 of 1929 however extended the section, so that it dealt not only with the sale of the mortgaged property at a revenue sale but also to the sale of any part thereof or any interest therein.