WOOMESH CHANDRA LASKAR Vs. ROMA NATH BARMAN

JUDGEMENT

(1.) This was a suit by the plaintiff under Section 283. of the C.P.C. for declaration that a third share of certain properties was mortgaged to him on 3 Chaitra 1309 for Rs. 10,000 and that the purchase of such properties by defendant No. 1 at a sale in execution was subject to the plaintiff's mortgage lien. The plaintiff also played that as he had paid off a prior mortgage decree for Rs. 5,604 on the entire property, it might be declared that defendant No. 1 purchased subject at least to the liability for that sum with interest. The only question before us is whether plaintiff can be allowed the priority of the mortgagee whose decree was paid off to the extent of the Rs. 5,604 due on that mortgage. Both the lower Courts have concurred in holding that the plaintiff had no intention, when that prior debt was paid off, of keeping that security alive for his own benefit, and they have accordingly dismissed the suit. Against that decision the plaintiff has preferred this second appeal.

(2.) The facts as found are shortly these:On 29 Jaisto 1301 (1894) defendant No. 2 and his co-sharer Ghanashyam Mandal and others mortgaged their undivided property to one Rakhal Das Addy for Rs. 4,000. In 1900 Rakhal Das Addy filed a suit on his mortgage and obtained a decree. Shortly afterwards that decree was assigned to Nritya Gopal Rai. In 1901 Nritya Gopal Rai executed his decree and brought the mortgaged properties to sale. They were bought by defendant No. 1 who also held a money decree against defendant No. 2 and his co-sharers. Defendant No. 2 applied to have the sale set aside. On 11 and 12 March 1903, while that application was pending, defendant No. 1 attached the same properties in execution of his own money decree. Five days later, on 16 March, defendant No. 2's application was granted and the sale to defendant No. 1 set aside. On 17 March 1903, defendant No. 2 mortgaged his l-3 share in the properties to the plaintiff to secure Rs. 10,000 and interest. On 19th March 1903, out of these Rs. 10,000 Nritya Gopal Rai's mortgage decree of Rs. 5,604 was paid off and satisfaction entered on that decree. Plaintiff then filed a claim under Secs.278, 282, that the attachment by defendant No. 1 should be subject to his mortgage, This was disallowed on 19 May 1903, and on 11 April 1904 this suit was filed.

(3.) It has been found that the plaintiff's mortgage for Rs. 10,000 was a genuine transaction, and that finding we must accept. There appears also to be no doubt that part of the Rs. 10,000 was used for paying off the amount due on Nritya Gopal Rai's decree. Turning to the question before us whether the plaintiff has acquired the right to stand in the place of the prior mortgagee Nritya Gopal Rai, it is of course a question of intention. The mere fact of the prior mortgage being paid off with the plaintiff's loan is not sufficient (see Ghose on Mortgage, p. 402). It must be clearly proved that the persons claiming the priority paid off the prior incumbrance with the express intention of keeping it alive for his own benefit. Such an intention may no doubt be inferred from the circumstances of the case, though it is more satisfactory when it is found expressed in the subsequent mortgage-deed or other document. Here, except for the mere fact that the mortgage-decree was paid off out of the Rs. 10,000 advanced by the plaintiff all the circumstances are against his present contention. There is no doubt authority for the proposition that a puisne incumbrancer may keep alive a prior incumbrance for his own benefit even though it has taken the form of a decree; see Surjiram Marwari V/s. Barhamdeo Persad 2 C.L.J. 202. Here, however, we have the fact that the mortgage decree was paid off, presumably by defendant No. 2 and full satisfaction entered thereon. Nothing was said or done at that time which would give plaintiff any, interest in that security Nor is it easy to see what he could have done towards asserting a lien in respect of a decree which had been fully discharged. There is the further fact that plaintiff accepted a particular and different security for, his own loan, namely, the l-3 share of his mortgagor. This transaction was complete before the decree was paid off and was independent of it. The security for the two debts was different and the plaintiff is now in effect claiming a lien over all the properties while his mortgage was only on a l-3 share. We are also told that the rates of interest were different, the prior mortgage being at 15 p.c. and the plaintiff's at 24 p.c. per annum. This case is very similar in its facts to the case of Mohesh Lal V/s. Mohant Bawan Das L.R, 10 I, A. 62; 9 C, 9 61; 13 C.L.R. 221, where their Lordships of the Privy Council held that the prior mortgage which was paid off out of moneys advanced by the plaintiff was extinguished. In the present case we have the additional fact that the prior mortgage had taken the form of a decree, which appears to us to militate against the plaintiff's present contention that he intended to keep it alive. If he did so intend, he should have taken an assignment of the decree and not have allowed it to be satisfied until he had done so. Under these circumstances, we see no reason to differ from the conclusion at which the lower Courts have arrived that the plaintiff here had no such intention, as he now professes. It was really an after thought on his part. Finding that his own mortgage lien was not sufficient, he endeavoured in this suit to assume the position of the prior incumbrancer whose mortgage had in fact been extinguished. This was the only point urged before us on this appeal, which accordingly fails and is dismissed with costs. Vincent, J.