HAZARIMULL Vs. MONOHAR DAS

JUDGEMENT

(1.) This is an appeal by defendant 7 which arises out of a suit to enforce a charge by the plaintiff on certain properties under the following circumstances: Defendant 7 had a usufructuary mortgage of the properties in question which belonged to defendants 1 to 6. The mortgage was made by some of them and the predecessors of others. These properties with other properties were subsequently mortgaged to the plaintiff by a deed dated 30 January 1905. Subsequent to that the mortgagors executed several other mortgages in favour of defendant 7. The plaintiff brought a suit on his mortgage which was No. 90 of 1918 and obtained a final decree on 6 January 1920. He put the decree in execution under Execution case No. 253 of 1922 but did not proceed to sell the properties mortgaged. The mortgaged properties included two revenue paying estates. There were separate accounts opened with regard to the estates for the shares belonging to the mortgagors. There was default in payment of revenue with regard to the shares belonging to the mortgagors of the revenue paying estates and the plaintiff deposited certain sums of money in March 1923 and March 1924 which included the revenue as well as cess payable on account of the mortgagors shares. In the meantime, defendant 7 obtained four decrees on the several mortgages that he had obtained from the mortgagors between 30 January 1905 and the dates when the money was deposited by the plaintiff for preventing the revenue sale. Those decrees were in one suit of 1.917 and three suits of 1920.

(2.) The plaintiff brought the suit out of which this appeal arises for the recovery of the money that he paid in March 1923 a March, 1924 for preserving the properties from sale and ho asked for a decree declaring a charge for the principal amount and interest according to the provisions of the Revenue Silo Law and also prayed that a decree may be passed to the effect that if the properties in suit be sold in execution of his mortgage decree obtained in suit No. 90 of 1918, then the plaintiff will be entitled to realize the amount claimed in the present suit out of the surplus sale proceeds to the exclusion of defendant 7 who had other mortgages to the properties. Defendant 7 objected to the claim on the ground that the plaintiff need not have deposited the revenue as his mortgage interest would not have been affected by the sale as the sale would haw been of the separate account belonging to the mortgagors and the purchaser would get the properties subject to his mortgage. It was further argued that under the provisions of Section 9, Revenue Sale Law (Act 11 of 1859) the amount paid by the plaintiff as mortgagee cannot be added to the amount of the original lien, as the original lien has been perfected by the decree of the Court. It was further argued that in any case the plaintiff cannot have a priority over defendant 7 for these advances made. The learned Subordinate Judge has made a decree partially in terms of the prayers made by the plaintiff. He has held that the plaintiff cannot; get any charge for the cess paid but that he was entitled to a charge for the amount of revenue paid in priority over the claim of defendant 7. It ought to be stated here that certain other persons were made parties, viz., defendants 8 to 10 who have now no interest in the properties in question. The Subordinate Judge has made an ordinary mortgage decree in favour of the plaintiff as against all the defendants including defendant 7 and has not given any direction as to how the money should be realized, whether from the surplus sale proceeds on a sale being held in execution of the plaintiff's decree in suit No. 90 of 1918 or not. Defendant 7 has preferred this appeal against that decree. The mortgagors also appear as respondents but they do not contest the appeal of defendant 7 who is only resisted by the plaintiff.

(3.) The grounds urged on behalf of defendant 7, the appellant, are the same as taken in the Court below. With regard to the first ground, the Subordinate Judge has held that the interest of the plaintiff was endangered by the fact of non payment of revenue and he paid the money in good faith for the purpose of protecting his own interest. As the Subordinate Judge puts it, that if by sale of the share of the mortgagors in the estate the arrears had not been realized, then the Collector would have proceeded under Section 14 of the Act and if any co-sharer had refused to purchase the share in default, then the plaintiff would have no opportunity to make the deposit and the entire estate would have been sold by the Collector which would have the effect of wiping out plaintiff's mortgage. The plaintiff therefore was interested in making the deposit and he comes within the description of the person referred to in paras. 3 and 4, Section 9, Revenue Sale Law. It seems to me that the learned Subordinate Judge was right in his view. It is not necessary that the immediate effect of the sale would be such as to wipe out the mortgage. Although it is contended that even if the cosharers had refused to purchase the defaulting share, the Collector could under the law accept payment of the revenue in arrears from the mortgagee, still the mortgagee was not hound to run the risk of the Collector's refusal to accept any payment from the mortgagee after the sunset of the last day of payment. This point, therefore, must be decided against the appellant.