Decided on July 31,1901



Maclean, C J - (1.) The question submitted to us, which I arises upon the present rule is, `whether a mortgagee of a tenure or holding, sold in execution of a decree for arrears of rent due in respect of it, is entitled to make an application under Section 310A of the Code of Civil Procedure, as being a person whose immoveable property has been sold within the meaning of that Section." The reference has been made owing to a conflict between the cases of Hamidal Huq V/s. Matangini Dassi (1898) 2 C. W. N. ccl viii, and Nityananda Patra V/s. Hira Lal Karmakar (1900) 6 C. W. N. 63. It is clear that, in a sale under these circumstances, the mortgagee, unless he can come in under Section 310A, runs a very serious risk of losing the benefit of his security, as the auction-purchaser is entitled to annul it. Here the mortgage was a simple mortgage, and, under Section 58 of the Transfer of Property Act, "a mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money," That the mortgagee has or at least may have a very substantial interest in the tenure sold is obvious, for if the tenure were mortgaged up to its full value, the whole interest would virtually be his. A mortgagor, whose tenure has been mortgaged up to the hilt, would have no interest in defending the suit, or resisting the sale, and, if the mortgagee cannot intervene, his security would probably be lost. Nor, on the other hand, is the auction-purchaser or the decree-holder in any wise prejudiced by the deposit being made by the mortgagee, for it can make no difference to J either of them whether it is made by the mortgagor, or by the mortgagee. These considerations lead me to think that the language of the Section ought to be liberally construed.
(2.) The opposite party is reduced to the position that the words in question refer to the judgment-debtor alone. This can hardly be so, for, if this had been intended, it is difficult to suppose that the Legislature would not have used the expression the judgment-debtor instead of the wider and more general expression which we find in the Section. And, if persons other than the judgment-debtor are included in the language " any person whose immoveable property has been sold," it is not very reasonable to say that the mortgagee of the tenure sold in execution of a decree for arrears of rent does not come within the category. If it apply to persons other than the judgment-debtor, but not to a mortgagee of the tenure, we have not been told to whom the words can apply. A simple mortgagee, as in the case here, has undoubtedly an interest in the tenure sold: to the extent of that interest it may fairly be said within the meaning of the Section that it is his immoveable property which has been sold. Do the words of the Section compel us to say that it is only the owner of the whole interest in the property sold, who can apply under it? I think not. Apart from authority, I should have been prepared to hold that such a mortgagee, as we find in the present case, is entitled, in a sale such as the present, to apply under Section 310A.
(3.) I. will refer briefly to the authorities. In Rakhal Chunder Bose V/s. Dwarka Nath Misser (1886) I. L. R. 13 Calc 346, the mortgagee was held entitled to amply under Section 311 of the Code, the language of which is identical, on this point, with Section 310A. There, no doubt, the mortgagee had obtained a decree for foreclosure, but, as it had not been made absolute, at the time of that application, under Section 311 I do not think that circumstance can, in principle, differentiate the case from the present. In the case of Hamidal Hug V/s. Matanging Dusi (1898) 2 C. W. N. cclv iii, it was expressly decided that the mortgagee could apply and the same view was held in Rule No. 770 of 1900, decided or the 27 July 1900, but unreported. In the case of Srinivasa Ayyangar V/s. Ayyathorai Pillai (1897) I. L. R. 21 Mad. 416, a similar view was held. On the other hand reliance is placed upon the case referred to in the reference, and reported in 5 C. W. N. 63. This is a clear decision the other way and opposed to the mortgagee being allowed to apply. That is the only decision precisely in point in support of the opposite parties view. The case of Asmutunnissa Begum V/s. Ashruff Ali 1888 I. L. R. 15 Calc. 488, was not a case under Section 310A, nor did it deal with the precise point now under discussien. There the applicant ought perhaps to have applied, and could have got the relief she sought, under the claim Sec.'s of the Code ( Section 278 et seq). Here the mortgagee has no remedy save under Section 310A. Cases have been cited to show that a simple mortgagee is not the owner of the mortgaged property, and that the words in Section 310A mean and apply to the owner only. Reliance has been placed upon certain observations in the Privy Council case of Sri Raja Papamma Rao V/s. Sri Vira Pratapa H. V. Bama Chandra Razu (1896) I. L. R. 19 Mad. 24(sic), especially upon that where their Lordships say that in such a mortgage (i.e., a simple mortgage) there is no transfer of ownership (p. 252), an observation which must be read, I think, in connection with the particular point then under discussion, and in a, case to which the provisions of the Transfer of Property Act had no application. In is again unreasonable to suppose that, if the Legislature intended to confine the right of application to the owner and to the owner alone, should not have said so in so many words. On the best consideration I can give to the question it ought, in my opinion, to be answered in the affirmative. As the whole rule is before us it be made absolute with costs here, and before the Division Ben for, if the mortgage were benami, the benamidar could apply up the Section; See Basi Poddar V/s. Ram Krishna Poddar (1896) 1 C.N.W. 135; if it was not benami then the mortgagee could apply. I desire to make it clear that my observations apply only to the case of such a sale as we have here, viz., the sale of a mortgaged tenure under the Rent Law. If it had been merely the sale of the equity of redemption, different considerations would obviously apply. Banerjee, J.;

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