MUSAMMAT RAHIMUNNESSA Vs. BADRI DAS

JUDGEMENT

(1.) THIS appeal arises out of a suit on foot of a mortgage dated the 17th of May 1904. The plaintiff stated in the plaint that the mortgage was made to satisfy a certain decree obtained on the 25th of February 1901 on foot of a mortgage dated the 6th of February 1895. They, therefore, claimed that their mortgage had priority over the defendant s mortgage. The defendant claimed under a mortgage dated the 25th of April, 1904, made by the male owner of the property in favour of his wife who is the present appellant. It appears that when the decree dated the 25th of February 1901 had been obtained, the decree-holder accepted from the judgment-debtor a sale-deed of a certain part of the mortgaged property in full discharge of the decree. Possession, however, it is said, was never given and it is admitted that the adjustment of the decree was never certified to the Court. Subsequently the decree-holder put into execution the decree. The judgment- debtor objected pleading the adjustment. The Court refused to recognize the adjustment because it had not been certified according to law, and directed the property to be sold. Before the property was sold, however, the judgment-debtor asked for sanction to prosecute the decree-holder for fraudulently executing the decree which had been satisfied. The result of all this was the mortgage of May 1904 on foot of which the present suit has been instituted. The amount of the mortgage was the amount of the decree of February 1901. The Court below has decreed the plaintiff s claim giving the plaintiff the priority which was claimed. In appeal here it is contended that the decree of 25th February 1901 was fully discharged by the sale-deed of 1903, and that the plaintiff s mortgage is only entitled to the priority of its actual date. Reliance has been placed upon the case of Nakta Ram v. Moti Ram A.W.N. (1906) 191. In that case, no doubt, it was decided that where the decree-holder took a usufructuary mortgage in discharge of a mortgage decree, he could not fall back upon the original mortgage on foot of which he had obtained his decree. THIS decision was considered in the case of Kanhaya Lal v. Chhedda Singh 7 A.L.J. 984 and a Bench of two Judges expressed their dissent. In the case of Shyam Lal v. Bashir-ud-Din 28 A. 778 it was held that where a third person advanced money for the purposes of satisfying a mortgage decree for sale of the property and took a mortgage for the amount so advanced, he was entitled to the benefit of the prior incumbrance as against the incumbrances which had been created between the original mortgage and the new security. The same view seems to have been taken by both the High Courts of Calcutta and Madras. Mr. Hamilton on behalf of the appellant contends that the decree was actually satisfied by the sale-deed, and that the subsequent mortgage was a new arrangement altogether in which not only the old mortgage debt was satisfied but also a criminal charge compromised. We cannot take this view. It is clear that owing to the fact that the adjustment of the decree was not certified, the property could be sold in execution of the decree notwithstanding any adjustment. If the sale had taken place and the property had been sold to a third party, the latter would have got a perfect title and the sale would have been considered to be free of all incumbrances. We feel that we must regard the position of the parties without considering the complication of the sale of 1903, that is to say, we must deal with the case on the basis that prior to the actual sale of the property on foot of the mortgage decree, the decree-holder took from the judgment-debtor a fresh mortgage for the amount due on foot of the decree. In our opinion, under these circumstances, on the authorities the mortgagee is entitled to the benefit of the prior mortgage at least to the extent of all moneys secured by that mortgage. We dismiss the appeal with costs including in this Court fees on the higher scale.