HIRA SINGH Vs. JAI SINGH

JUDGEMENT

(1.) Two questions only are raised in this appeal. A prior mortgage was redeemed partly by the mortgagor and partly by vendees, who after the execution of the puisne mortgage, purchased the mortgaged property. In terms of the sale deeds in their favour payments were made by the vendees to the prior mortgagees in part redemption of the prior mortgage. The vendees claim in the present suit by the puisne mortgagees the right of subrogation under Section 92, T.P. Act. The plaintiffs maintain that the vendees are not entitled to the right of subrogation In respect that (1) The part redemption in terms of covenants in the sale deeds, and (2) the prior mortgage was not fully redeemed by any one of the persons mentioned in argument that Clause 3 of Section 91. There are conflicting decisions on the questions raised. In the circumstances, we consider it expedient the point should be referred to a Pull Bench. Let the record be laid before the Hon ble, C.J. for the constitution of a Pull Bench to decide the following question of law, viz., (1) Where a prior mortgage is redeemed partly by the mortgagor and partly by vendees of the mortgaged property out of the sale consideration and us terms of covenants in the sale deeds in their favour, are the vendees, as against puisne mortgagees, entitled to the rights of subrogation under Section 92, T.P. Act? (2) Does Clause 3 of Section 92, T.P. Act, apply to persons mentioned in Section 91 of the Act?

(2.) A preliminary objection is taken to the constitution of this Bench. It is contended before us that inasmuch as Bajpai, J. has not taken a fresh oath as required by Section 220(4), Government of India Act, 1935, in the form prescribed in Schedule 4, he is not entitled to enter upon his office as a Judge of this Court. Bajpai, J. was appointed an Additional Judge of this Court in 1932 and since then he has been continuing as a Judge of this Court without a break. The periods of his appointment have been extended from time to time. In December 1936 there was a last extension made by the Governor. General up to 31 March 1937. On 9th March 1937, His Majesty approved of the appointment of Bajpai, J. as a permanent Judge of this Court, and on 17 March 1937 the Royal Warrant for him was duly signed. The words as notified are: With effect from 1 April 1937, His Majesty the King-Emperor has been pleased to appoint the Hon ble Mr. Justice Uma Shankar Bajpai, additional Judge of the High Court of Judicature at Allahabad, to be the Puisne Judge of the said High Court in a permanent post created with effect from that date.

(3.) There can, therefore, be no doubt that he was appointed a permanent Judge of this Court on 17 March 1937, though his appointment was to take effect from 1 April 1937, which was in continuation of his appointment as an additional Judge of this Court. Section 231 of the Act lays down that any Judge appointed before the commencement of Part 3 of this Act to any High Court shall continue in office and shall be deemed to have been appointed under this part of the Act, etc. If Bajpai, J. was appointed before the commencement of Part 3 of this Act, as in fact he was, then he must be deemed to have been appointed under this part of this Act and must continue in office, Part 3 of the new Government of India Act came into force on 1 April 1937.