HAR PRASAD Vs. SITA RAM

JUDGEMENT

(1.) The contest in the present appeal is between a subsequent mortgagee who in execution of a decree for sale obtained on the basis of the subsequent mortgage purchased the mortgaged property and a transferee pendente lite who redeemed certain prior mortgages and held the same up as a shield against the claim of the subsequent mortgagee auction-purchaser in a suit for possession of the mortgaged property The transferee pendente lite succeeded in the trial Court, but the lower Appellate Court passed an unconditional decree for possession in favour of the sub-sequent mortgagee auction-purchaser In order to appreciate the respective contentions of the parties, it is necessary to briefly state the facts. One Girdhari Lal was the owner of the property in dispute. On 25 May 1916 he (Girdhari Lal) executed a simple mortgage with respect to the property in dispute in favour of one Banarsi Das. Again, on 11 June 1917, he executed a simple mortgage in favour of Har Prasad defendant-appellant. Then on 30 May 1918, Girdhari Lal executed a third simple mortgage in favour of Sita Ram plaintiff respondent. Sita Ram put his mortgage of 1918 into suit and obtained a final decree for sale in the year 1922.

(2.) Before Sita Ram put his decree into execution Girdhari Lal on 27 September 1926 executed a simple mortgage in favour of Har Prasad in lieu of the mortgage of 1917. In other words, this mortgage of 1926 was in renewal of the mortgage of 1917. Finally, on 10 April 1928, Girdhari Lal executed a deed of usufructuary mortgage in favour of Har Prasad. The consideration of this usufructuary mortgage was the amount due on the basis of the mortgages of 1916 and 1926. Har Prasad thereafter redeemed the simple mortgage of 1916. In execution of his decree for sale Sita Ram purchased the property in dispute on 2 August, 1930, and when he proceeded to take possession of the property he was resisted by Har Prasad, the usufructuary mortgagee. Sita Ram then filed the suit giving rise to the present appeal for possession of the property in dispute. Har Prasad contested the suit inter alia on the ground that in consequence of the facts stated above he was subrogated to the position of the mortgagees of 1916 and 1917 and that Sita Ram could not be granted a decree for possession without redeeming those mortgages. This contention, as already stated, was overruled by the lower Appellate Court and in my judgment rightly.

(3.) The mortgages of 1916, 1917 and 1926 were simple mortgages and the only remedy of Har Prasad under those mortgages was to sue for sale of the mortgaged property. Har Prasad was not entitled to possession of the mortgaged property under any one of those three mortgages. It was only by virtue of the usufructuary mortgage of 1928 that Har Prasad acquired possession of the mortgaged property. This usufructuary mortgage however offended against the provisions of Section 52, T.P. Act, which inter alia provides that during the pendency of any suit or proceeding in which any right to immovable property is directly and specifically in question, the property cannot be transferred by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein. The explanation added to Section 52, T P. Act, makes it manifest that lis pendens continues till the decree obtained in the suit is completely satisfied or discharged or the execution of the same becomes barred by limitation.