ABDUL LATIF Vs. ABDUL GANI SERANG

JUDGEMENT

(1.) This rule is directed against the order of the Munsif at Sandwip, dated 17 March 1939, rejecting the defendant-petitioner's application for vacating his order, dated 5 April 1938, staying the hearing of a certain suit for foreclosure on the basis of a mortgage by conditional sale executed by him in favour of the plaintiff-opposite party. The only point for determination in this rule is whether a suit for foreclosure of a mortgage by conditional sale executed for the purpose of securing the payment of money advanced by way of loan is a suit in respect of a "debt" within the meaning of Section 34, Bengal Agricultural Debtors Act, 1935. "A mortgage" as defined in Section 58, T.P. Act, is the transfer of an interest in specific immovable property, for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.

(2.) A mortgage by conditional sale is a transaction essentially different from a sale with a condition of re-purchase. In a sale with a condition for re-purchase the ownership vests in the transferee from the date of the document and there is no question of any debt being in existence after the transaction. In a case of mortgage by conditional sale, the debt subsists and a right to redeem remains with the debtor. The provisions of Order 34, Rule 2, Civil P.C., support this view. The person entitled to the benefit of an obligatio was in Roman law termed creditor, while he who was bound by it was called debitor. Every obligation, of whatever nature, as vested in or belonging to a creditor, and availing against a debtor is an obligation arising out of a debt. There is of course a narrower sense, in which these terms are applicable only to those obligations which constitute debts; that is to say, obligations to pay a definite or liquidated sum of money: Salmond's Jurisprudence, 4 Edn. p. 423.

(3.) Section 2, Clause (8), Bengal Agricultural Debtors Act, defines the word "debt" thus: Debt includes all liabilities of a debtor in cash or in kind, secured or unsecured, whether payable under a decree or order of a civil Court or otherwise, and whether payable presently or in future.