BHAGWATI PRASAD Vs. DULLAN SINGH

JUDGEMENT

(1.) This is a defendant's appeal in a suit for possession of certain zamindari property. The property in suit was mortgaged by one Manohar Singh in the year 1905. The mortgage was a usufructuary mortgage in favour of Jwala Singh. The plaintiff Dullan Singh claims the property as a reversioner. The contesting defendant Bhagwati Prasad, vakil, is a sub-mortgagee of Jwala Singh's mortgagee rights. In the year 1921, the mortgagee Jwala Singh instituted a suit for sale against Manohar Singh. During the pendency of the suit Manohar Singh died and his minor son Ajab Singh was brought upon the record. The dispute between the parties was eventually compromised and decree was passed in terms of the compromise. The decree was one under Order 34, Rule 5, and the decretal amount was Rs. 450. The defendant Bhagwati Prasad took a mortgage of Jwala Singh's mortgagee rights as already observed and also over other property of Jwala Singh in the year 1913. He brought a suit upon his mortgage against Jwala Singh and Mt. Bhagwani Kunwar, the widow of the said Ajab Singh, in the year 1926. This suit was decreed ex parte. In execution of the decree the property mortgaged by Manohar Singh was auctioned and purchased by Bhagwati Prasad in the year 1929. In this year, the plaintiff Dullan Singh filed a suit against Bhagwani Kunwar and Jwala Singh praying for possession of Manohar Singh's property including the property mortgaged. He averred that after the death of Antu Singh, the grandson of Manohar Singh, he was entitled to possession as reversioner. The suit was contested by Mt. Bhagwani Kunwar alone. The defence however failed and decree for possession was granted to the plaintiff. Dullan Singh thereafter applied for mutation and discovered that the name of the contesting defendant in the present suit, Bhagwati Prasad, had already been recorded in the respect of the property. He has in these circumstances prayed in the present suit for possession. The contesting defendant has pleaded that the plaintiff is not entitled to decree except upon the payment of the total amount due upon the sub-mortgage in his favour. The learned Civil Judge in the lower Appellate Court granted a decree in favour of the plaintiff conditional on payment by the plaintiff of the sum of Rs. 450, the amount of the decree in the suit by Jwala Singh on his mortgage.

(2.) In appeal it was contended for the defendant that the decree in Jwala Singh's suit was not binding upon the defendant earned counsel maintained that despite the final decree in Jwala Singh's suit which was passed on 28 October 1922 the security still subsisted and the defendant, i.e. Sub-mortgagee, was entitled to the benefit of that security. In support of his contention that the security still subsisted despite the passing of a final decree in a mortgage suit learned Counsel for the appellant referred to the case in Mt. Sukhi V/s. Ghulam Safdar Khan (1922) 9 A.I.R. P.C. 11. In that case it was decided by the Privy Council, that when a prior mortgagee brings the property to sale in execution of a decree on his mortgage without impleading the puisne mortgagee to the suit, the rights of the puisne mortgagee are not affected by the sale. But if the puisne mortgagee brings a suit on his mortgage, the auction- purchaser in execution of the prior mortgage decree, can use the prior mortgage right as a shield, and claim payment of the amount due under the prior mortgage decree, where the puisne mortgagee seeks a decree for sale in his favour.

(3.) The dispute in that case did not concern the rights of a sub-mortgagee but those of a purchaser at an auction in execution of a decree on a prior mortgage. In determining the rights of a sub-mortgagee different considerations apply. Furthermore, in our judgment, it does not follow that because the security subsisted despite the passing of a final decree the defendant is entitled to claim the total amount due upon his sub-mortgage. The security no doubt subsists for certain purposes after the passing of a decree but it subsists only in respect of the decretal amount. The finding of the lower Appellate Court in the present case is that the mortgagor had no notice of the sub-mortgage. The suit of 1921 was compromised in ignorance so far as the mortgagor was concerned of the sub- mortgagee's rights. The lower Appellate Court has further found that there was no fraud or collusion on the part of the mortgagor and the mortgagee. In these circumstances in our judgment the plaintiff is entitled to take his stand upon the decree.