BINDESWARI PRASAD Vs. LAL MUNGARI LAL

JUDGEMENT

(1.) This is an appeal by the plaintiff against an appellate decree of the learned District Judge of Darbhanga dismissng an appeal of the plaintiff against a decision of the learned Munsif who refused to pass a mortgage decree in his favour against the respondent who purchased the mortgaged property as a result of a sale by a Deputy Magistrate in July 1924 under the provisions of Secs.87 and 88, Criminal Procedure Code, the accused mortgagor Mungari Lal having absconded. The defence in the action was, so far as the respondent auction-purchaser is concerned, that the Government should have been made a party to the action, being a necessary party, and also that the sons of the auction-purchaser were not party defendants and, therefore, it was contended that there was a defect in the suit.

(2.) The learned Court below has held that in this case there cannot be a mortgage decree without making Government a party and, therefore, the suit must fail. In my opinion the learned Judge has wholly misconceived the scope of Section 88, Criminal Procedure Code and the effect of sales by the Secretary of State through the Deputy Magistrate of the property of the accused who was the mortgagor in this case. The provisions of Section 88 of the Code have been enacted for the express purpose of compelling an accused to appear in obedience to a summons or a warrant issued by Criminal Courts and this is a penalty which is sought to be enforced against him to coerce him to respond to the orders of the Criminal Courts and take his trial and not avoid the reach of justice. For this reason, property which is sold is the property of the accused, and if the accused has before the sale under Section 88 transferred any interest in the property, that interest cannot obviously be sold. Applying this reasoning it is clear to my mind that what the Government purported to sell and could sell in 1925 was nothing more than the equity of redemption which on that day was in the mortgagor, and Government or its transferee could not acquire any higher rights than the mortgagor had on that day. The Government by attaching the property does not get any rights in its favour beyond what the section specifically provides. This view is in accord with the observations of the learned Judges of the Madras High Court in Alagammal v. Sadasiva Padayachi AIR 1930 Mad. 1017 : 129 Ind. Cas. 47 : 60 ML 72 : 32 LW 843 : (1930) MWN 1021 : Ind. Rul. 931 Mad. 191. In that case it may be noticed that the Government had not sold the property which it had attached under Section 88, and in that view it was held that the Government ought to have been made a party; but it was also held that the absence of the Government from the category of defendants did not affect the rights of the Government and, therefore, when the defendants in that suit had derived their title from the Government, they also were entitled to redeem. The same remarks apply with equal vigour to the present case. In the present case the Government was not a necessary party because on the day of the mortgage action the Government had transferred its right to the respondent (it actually sold the property attached to the respondent auction-purchaser), and, therefore, in my opinion the only person who was a necessary party in this mortgage action was, besides the mortgagor, the person who was then in possession of the property as a subsequent purchaser of the equity of redemption, that is to say, the auction-purchaser of 1925. I therefore overrule the decision of the learned District Judge on this point.

(3.) It was next argued by Mr. K.N. Lal for the respondents that the sons of the auction-purchaser were not made parties. Upon the findings of the trial Court that the karta was a party in this action, there is no merit whatsoever in this objection. Mr. K. N. Lal next argued that there was some kind of an estoppel against the mortgagee from bringing the present action in-asmuoh as the mortgagee as landlord had actually been receiving rent from the auction-purchaser who was in possession of this property before bringing the mortgage action. It is enough to state that no issue of estoppel was ever sought to be raised in the trial Court and the decision of such an issue would depend upon many questions of fact which are necessary to be investigated before the bar of estoppel can be raised by the defendant.