BACHU LAL Vs. RAM DIN

JUDGEMENT

(1.) This is an application in revision under Section 115, Civil P.C. by one Bachu Lal whose objection under Order 21, Rule 58, Civil P.C. to the attachment of a house in execution of a decree has been dismissed by the learned Munsif of Cawnpore. The house in dispute originally belonged to Gokul, the opposite party No. 2, who executed two mortgages in respect thereof, one on 14 February 1934 in favour of the present applicant and the other dated 3 December 1934 in favour of one Jagannath. A few days after the latter mortgage, that is on 18 December 1934, he transferred the house to the present applicant under a sale deed. Jagannath brought a suit (No. 809 of 1935) to enforce his mortgage by sale of the house in dispute. The present applicant, who was impleaded in that suit as a subsequent transferee, pleaded that he was a prior mortgagee and was therefore entitled to exercise the right of subrogation. It appears that in the meantime Gokul had been adjudicated an insolvent and one of the defendants in Jagannath's suit was the Official Receiver appointed by the Court in whom the assets of Gokul consisting of the house in dispute had vested. A question was therefore raised in that suit that the sale deed of 18 December 1934 executed by Gokul in favour of the present applicant will not a bona fide transaction for valuable consideration. The learned Munsif who tried that suit framed two issues, one in respect of the plea of priority taken by the present applicant and the other in respect of the question whether he was a bona lido purchaser for valuable consideration. It appears that the present applicant did not care to produce any evidence to establish that he was a bona fide purchaser for valuable consideration and hence the learned Munsif decided the issue upon that point against him in the following terms: Bachu Lal, defendant 3, has given no evidence to prove the sain deed in his favour, though he admits that he JIIMS purchased the mortgaged property and is in possession thereof. The burden to prove his bona fides lay on him, and I hold that lie is not a purchaser bona fide. Issue is decided accordingly.

(2.) Curiously enough inspite of this finding, whoa the learned Munsif proceeded to consider and decide the other issue relating to the applicant's right of priority as a mortgagee, ho arrived at the result that the applicant having purchased the mortgaged property, his rights as a mortgagee were merged in the right of ownership and hence ho had no charge left upon the property, and standing only in the position of the mortgagor could not claim any priority under Secs.91 and 92, T.P. Act. His finding upon that issue is in the following terms: In my view, defendant 3 has no such right lift in view of the provisions of Section 91 read with Section 92 of the amended Transfer of Property Act. Under the provisions of Section 92, the right of subrogation is given to persons referred to in Section 91. Section 91(a) gives a right of redemption to any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in or charge upon the right to redeem the same. Defendant 3 after the purchase of the mortgaged property has mi charge loft upon the right to redeem. His mortgagee right; merged in the right of ownership, lie becomes in the position of a mortgagor so far as the plaintiff is concerned. The prior mortgagee and no decree upon his mortgage in which the plaintiff, subsequent mortgagee, was a party. This is the case of a voluntary private sale and purchase by defendant 8, Therefore para. 1 of Section 92, T.P. Act, does not apply to this case. Defendant 3 is not entitled to subrogate. No intention to keep alive the rights of defendant 3 under his mortgage in shown. This issue is decided accordingly.

(3.) Having arrived at these findings, the learned Munsif decreed Jagannath's suit against all the defendants including the present applicant who appealed from the decree and succeeded to this extent, that the Appellate Court held that though he could not exercise the right of subrogation, yet he had a charge upon the property under Section 100, T.P. Act. Taking this view, the Appellate Court directed Jagannath to redeem the prior mortgage in favour of the appellant and then to sell the mortgaged property in order to recover the money due on his own mortgage and also that which he had to pay in order to redeem the prior mortgage. Jagannath deposited in Court the amount necessary to redeem the applicant's mortgage; but, it appears that when he proceeded to sell the property the applicant, who was given the right to redeem Jagannath's mortgage, deposited in Court the amount due under that mortgage. In the meantime, Ram Deo, opposite party No. 1 in this case, brought a suit against Gokul in the year 1937 and obtained a simple money decree. Putting that decree into execution, he proceeded to attach the house in dispute, whereupon the present applicant made an objection under Order 21, Rule 58, Civil Procedure Code.