Decided on November 06,1968

SHAMLAL Respondents

Referred Judgements :-



JAGAT NARAYAN, J. - (1.)THIS is a revision application by the decree-holders against an order of the executing court abating execution proceedings.
(2.)THE judgment-debtor executed a possessory mortgage in favour of one Motimal Bhandari in respect of his house on 1-1-45. On 23-4-49 he executed the percent possessory mortgage in favour of the decree-holders partly to pay off the earlier mortgage and partly to defray the expenses of the marriages of his daughters. THE mortgage amount was Rs. 6,000/- out of which Rs. 4000/- were paid to the earlier mortgagee and Rs. 2000/- were borrowed for celebrating the marriages of the daughters. THE contention on behalf of the decree-holders is that the case falls under section 4 (h) of the Rajasthan Relief of Agricultural Indebtedness Act, 1957 and the provisions of the Act are therefore not applicable. That sub-section runs as follows : "4. THE provisions of this Act shall not affect claims due in respect of - . . . . . . . . . . . . . . . (h) a mortgage-claim against property in the hands of a subsequent transferee who has taken the transfer in order to satisfy the mortgage, . . . . . . . . . . . . . . . On behalf of the judgment-debtor it is contended that the mortgage in favour of the decree-holders is not a subsequent mortgage because the earlier mortgage was paid off when this mortgage was executed. THE recitals in the deed go to show that the present mortgage was executed to pay off earlier mortgage. THE present mortgage is thus a subsequent mortgage within the meaning of sec. 4 (h ).
The next contention is that as the whole of the mortgage money was not borrowed for paying off the earlier mortgage sec. 4 (h) is not applicable. I am unable to agree with this contention. The mortgage cannot be split up into two mortgages one for Rs. 4000/- and the other for Rs. 2000/ -.

Following the decision in Kajorilal vs. Bhanwar Lal (l) I allow the revision application and set aside the order of abatement. I leave the parties to bear their own costs. .


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.