KALYAN DAS Vs. MAQBUL AHMAD

JUDGEMENT

(1.) On this appeal-Sir W. Garth for the appellants contended that the rights of Dahi Das as mortgagee were merged and extinguished on his purchase of the equity of redemption in 1881, and could not be and were not revived by the proceedings in 1897; and that the respondents having only purchased mortgagees rights which did not exist, took nothing whatever by their purchase. The intention of Debi Das to extinguish the mortgage has been found as fact; the mortgagee s rights therefore no longer exist. There are cases where a mortgagee purchasing can keep a mortgage alive, but here his intention to do so was not established and under Section 101 of the Transfer of Property Act, it is submitted, the charge was extinguished. Here the purchase was before that Act came into force, but it merely declares the law as it was before the Act. The appellants contend that the respondents took nothing by the sale in 1897. [DeGruyther, KC. "That question is not now open: no appeal on it was preferred to the High Court."] In the High Court it was only a question of taking accounts. The first decree of the Subordinate Judge was an interlocutory decree only. The case was tried before the Civil Procedure Code of 1908 was in force: under the Code of 1882 the appellants could have waited to appeal until the final decree was made. The present appeal is from a final decree.

(2.) DeGruyther, K. C., and 5. Dube for the respondents land 2 were not called upon.

(3.) 1918, April 18th: The judgment of their Lordships was delivered by Lord Sumner: