Decided on February 07,1955

Ehsanali Appellant
Kikabhai Respondents


Chaturvedi, J. - (1.) THIS second appeal is filed by Defendant 1, Ehsan Ali, against a decree dated 4 -8 -53 passed by the Additional District Judge, Shajapur, in appeal, modifying the decree, of the trial Court. The suit relates to a mortgage -deed executed on 17 -4 -1921 by Plaintiff, Respondent 2, Mulla Abdul Husain. in favour of the Appellant for a sum of Rs. 1,000. It was an anomalous mortgage in Which there was a promise to pay money within seven years, but possession was handed over to the Appellant of the upper story of the house which alone was mortgaged. On 19 -4 -1926 the Appellant sub -mortgaged this mortgage for a sum of Rs. 250 with Mulla Kadar Bhai Respondent 3 and the promise was to pay the money within one year. The Appellant gave possession of the property mortgaged to Respondent 3 with the stipulation that no interest will be charged on the money and no rent will be charged for the house. It appears that Respondent 3 filed a suit against the Appellant on 4 -1 -1930 (Original Suit No. 182 of Samvat 1986 in the Court of tho Judicial Officer, Shajapur). The suit was decreed and in execution of the decree mortgagee's rights were put to sale. Respondent 1 Kikabhai then purchased these rights on 13 -6 -31 and thus came in possession of the said property. In January 1951 the original mortgagor Mulla Abdul Husain, Respondent 2, brought the present suit for redemption of the original mortgage. The question was whether the sum of Rs. 1,000 should be paid to the first Respondent Kikabhai who claims the whole amount by virtue of his purchase of the rights of the sub -mortgagee or whether he should get Rs. 250 only and the sum of Rs. 750 should go to the Appellant. The trial Court passed a preliminary decree to the effect that only Rs. 250 should be given 3Cikabhai Respondent 1 and that then he should hand over possession of the property to the Plaintiff and that the remaining sum of Rs. 750 should be paid to the Appellant. Kika Bhai, Respondent .1 felt aggrieved by this order and went in appeal to the Additional District Judge, Shajapur, who allowing the appeal has held that he is entitled to the whole amount of Rs. 1000. The Appellant against this decree has come to this Court in second appeal.
(2.) MR . Patankar, on behalf of the Respondent, in justification of the order passed by the Additional District Judge, contends that the effect of sale of the Appellant's mortgages interest was to destroy the equity of redemption in the mortgage property and there is no doubt about it as regards his interests upto Rs. 250. When the mortgagee sub -mortgages his frights, he, of course, becomes a surety and the sub -mortgagee can enforce his claim against the property which was mortgaged to the mortgagee and also against the mortgagee himself - 'Dost Mohammad v. Dherumal', AIR 1940 Pesh 25 (A): In this case, however, the sub -mortgagea did not proceed against the mortgaged property he contented himself by filing a suit against his own mortgagor i.e. the original mortgagee. He got a decree and in execution of this decree the original mortgagee's rights were sold. The effect of the sale was to cut off the equity of redemption in the property to that extent only, and to constitute the sub mortgagee exercising the powers of sale a trustee for the original mortgagee of the surplus proceeds, if any, after satisfying his own debt. The original mortgagee could not have been deprived of all his rights in the property merely by an assignment of a part of the debt and this is also what is stated in the decree. The decree dated 28 -10 -1931 in Original Suit No. 182 of Samvat 1986 was only for a sum of Rs. 250 and the decree mentioned that the lien of the decretal amount was on this mortgaged property as well as on other property of Ehsan Ali. The decree runs as follows: fMxzh eqckyx 250 #i;s dh vykok [kpkZ o gd eqíbZ f[kykQ eqíkyk ua - 1 ,glku vyh nh tkos okjS fMxzh edku ejgwuk ftldk uD'kk 2@4 bUMsDl ij gS nhxj tk;nkn eqíkyk ua - ij jgsa A The decree obviously did not make any provision about the realisation of the amount due to the original mortgagee. It will be clear that the decree took into consideration the fact that the mortgage amounted to Rs. 1,000 and what was sub -mortgaged was only a sum of Rs. 250. On the facts, it is, therefore, clear that there was no complete assignment of the cause of action of the mortgagee in favour of the sub -mortgagee. The facts in the present case are, to a certain extent, similar to those in - 'Mohideen Pichai v. Meera Rowther', AIR 1937 Mad 793 (B). Then, the decree in the form in which it was prepared in Original Suit No. 182 of 1933 does not preclude the original mortgagee from claiming the money now. It is well settled that in any suit for redemption or foreclosure of the original mortgage, the accounts between the original' mortgagor and the original mortgagee on the one hand, and the latter and the sub -mortgagee on the other, have to be taken and the respective claims of the three parties adjusted and settled - 'Narayan Vithal v. Ganoji;, 15 Bom 692 (C) see also page 39 of 20 Mad 35, - 'Muthu Vijia Raghunath v. Venkatachalam', (D). It will thus be obvious that Mulla Kadar Bhai Respondent 3 was not entitled to anything more than Rs. 250 and Kikabhai Respondent 1, having purchased the interests of Respondent 3, could not have been entitled to anything more than awarded by the decree passed on 28 -10 -1931 in Original Suit No. 182 of Samvat 1986. In this view of the matter the trial Court's decree appears to be correct and no interference was called for by the first appellate Court. I would therefore, allow this appeal with costs, set aside the decree of the first appellate Court and restore that of the trial Court.;

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