DURGA CHARAN CHANDRA Vs. AMBICA CHARAN CHANDRA

JUDGEMENT

(1.) The facts as they may be gathered from the record, are these : The petitioner had mortgaged some lands to one Ishan Chandra Dutta on the 3 Jaistha 1324. He then executed another mortgage in respect of the same lands to the opposite party on the 11 Ashar 1325. Ishan Chandra Dutta sued on his mortgage, obtained a decree and advertised the mortgaged properties to sale The opposite party deposited the decretal amount due to Ishan Chandra Dutt any saved the mortgaged properties from sale and then institued the suit out of which this Rule has arisen for recovering the amount so deposited by him together with costs of the deposit. The Munsiff decreed the suit, and that decree has been affirmed on appeal by the Subordinate Judge. The petitioner then obtained this Rule.

(2.) The contention urged on behalf of the petitioner is that the suit as laid was not maintainable and that the rights acquired by the opposite party under Section 74 of the Transfer of Property Act are the only rights which he is competent to enforce under the law. It may be mentioned here that this contention was not put forward in the trial Court. It was taken for the first time in the Court of appeal which overruled it, relying on the authority of the decision in the case of Shib Lal V/s. Munni Lal A.I.R. 1922 All. 153. At first we were not inclined to allow the petitioner to raise this contention as it was not raised in the Court of first instance, but as the petitioner is content to urge it as a pure question of law requiring no fresh investigation into facts, we have heard both sides on it and propose to deal with it on that footing.

(3.) It has been urged on behalf of the petitioner that Section 74 of the Transfer of Property Act lays down all the rights which a second mortgagee acquires on paying off the first mortgagee and that to allow a suit of this description will in many cases lead to hardship, e.g., where the mortgagor may not have any property other than the one mortgaged or in cases where there was not or there is no longer any personal remedy available to the first mortgagee himself.