Decided on February 12,1900

CHUNNI LAL Respondents


Arthur Strachey, C J - (1.) The only question in this appeal is whether the Court below has rightly made the plaintiff's decree conditional on the payment by him to the respondents of the amount due under their decree of the 30 September 1885. The plaintiff sued on a mortgage of the 5 June 1885. The respondents were prior mortgagees under a mortgage of 1882. At the time when the mortgage to the plaintiff was executed a suit on the respondents mortgage was pending. The respondents obtained a decree on their prior mortgage on the 30 September 1885. In paragraph 8 of the plaint in the present suit for sale the plaintiff states that the respondents "are impleaded as defendants on account of their decree of the 30 September 1885, and that the entire amount of the said decree was satisfied without anything remaining due, but nevertheless they say their debt is still due; the plaintiff therefore is willing to pay the portion of their demand found in the Court's opinion to be still remaining due." The respondents in their written statement denied that the amount due to them had been fully satisfied, and contended that according to a correct account Rs. 29,000 odd was still due to them under their decree, and that the claim was barred by Section 244 of the Civil P. C.. The issues framed by the Court below as between the plaintiff and the respondents were issues 10 and 13. Issue 10 was "whether the whole money due to the defendants 2 and 7 has been satisfied, or a sum of Rs. 29,534 is still due?" Issue 13 was "whether the suit as against these defendants is barred by Section 244 of the Code?" On these points the Court below held that in fact the whole amount due under the decree had been paid, but that the plea which the plaintiff raised as to such payment and as to the incorrectness of the defendants accounts was barred by Section 244. The Court accordingly made the plaintiff's decree subject to his paying to these two defendants the amount of their decree.
(2.) Now whether this view is correct depends on, first, whether the plaintiff was a representative of a party to the decree of the 30 September 1885, within the meaning of Section 244; and, secondly, whether he is attempting to raise in this suit any question which under Section 244 can only be determined by order of the Court executing that decree and must not be raised by separate suit.
(3.) As to the first of these questions, the plaintiff took his mortgage of the 5th June 1885, during the pendency of the suit in which the decree of the 30th September was passed. He therefore took it subject to the decree, and the decree was binding on him so far as the property comprised in his mortgage was concerned. In the case of Madho Das V/s. Ramji Patak (1894) I.L.R. 16 All. 286, an opinion was expressed that a purchaser pendente lite from a defendant mortgagor should be treated as a representative of the defendant in execution of decree within the meaning of Section 244, the reason being that such a purchaser is bound by the decree and should therefore be allowed to make any objection in the execution department which the parties to the decree or any one else bound by it would be competent to make. And it does seem reasonable that no distinction should be made so far as the competency to make objections in execution is concerned between one person who is bound by the decree add another. A purchaser from the defendant mortgagor pendente lite is just as much bound by the decree as a purchaser from the judgment-debtor after the decree, and I can see no reason why he should be in an inferior position so far as Section 244 is concerned. If that is a correct view as regards a purchaser pendente lite in a suit on a mortgage, I think that it must be equally true of a mortgagee who takes a mortgage during the pendency of such a suit. The remarks in the case of Madho Das V/s. Ramji Patak, to which I have referred, were no doubt made obiter. The decree against the judgment-debtor was a simple money decree, creating no charge on specific property, to which of course different considerations apply. I think, however, that the observations are sound and reasonable, and that a mortgagee taking pendente lite, like the present plaintiff, ought to be regarded as a representative of the mortgagor defendant in the sense that, being bound by the decree afterwards passed, he is competent, under Section 244 of the Code, to raise in the execution of that decree any of the questions mentioned in that section.;

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