Regular Appeal from a decree passed by the Subordinate Judge of Moorshedabad.
This was a suit for a declaration of a mortgage lien and for attachment and sale.
The facts may be stated as follows: On the 20th of June 1868, Grish Chunder Bundopadhya mortgaged the property in dispute to Muddun Mohun Pal. On the 28th of February 1873, Grish Chunder borrowed Rs. 3,000 from Hurri Mohun Bagchi and Sreenarain Bagchi for the purpose of saving the same property from sale for arrears of rent; and the money was applied for that purpose. On the 27th of June 1873, Grish Chunder borrowed another Rs. 3,000, and by a bond hypothecated the property in dispute to secure the payment of the whole Rs. 6,000. This bond cited the previous hypothecation to Muddun Mohun. The property in dispute was situate partly in the district of Nuddea, and partly in Moorshedabad. On the 5th of March 1874, Muddun Mohun, having previously obtained a mortgage decree against Grish Chunder Bundopadbya, sold the property to Kali Prosonno Pal Chowdry. It does not appear that he applied for leave to proceed with his suit in the Nuddea Court, under Section 12, Act VIII of 1859.
The Lower Court held that the mortgage decree obtained by Mnddun Mohun on the 5th of March 1873 had the effect only of mere money-decree, as no leave was given to proceed under Section 12, Act VIII of 1859; but that the sale of the property under this decree to Kali Prosonno Pal Chowdry on the 5th of March 1874, carried the property, and with it the lien of the first mortgagee, Muddun Mohun; but that, because Rs. 3,000 of the plaintiff's claim was lent to save, and did save, the property from sale, the plaintiff had a prior right to be paid that amount, and gave his decree accordingly.
Both parties appealed.
Baboos Mohiny Mohun Roy and Rashbehary Ghost (for Kali Prosonno Pal Chowdry) contended that the plaintiffs were not entitled to any priority in respect of the Rs. 3,000 advanced to protect the property.
For Respondents: Baboo Gooroo Doss Banerjee.
[It is unnecessary to refer to the plaintiff's appeal, which was dismissed, the Court following Syud Emam Momtazooddeen Mahomed…Defendant; v. Rajcoomar Dass…Plaintiff.*, 23 W.R, 181; 14 B.L.R, 408.]
The following judgment of the High Court1 in the other appeal was delivered by Markby, J.:—
In this case, which raises the question as to the three thousand rupees, there we think the Subordinate Judge was wrong. It appears that there being a prior mortgage, and the property being about to be sold for arrears of rent, the plaintiffs advanced to the Son of the mortgagor, under an ordinary bond without security, the sum of three thousand rupees upon interest at the rate of upwards of seventy per cent, per monsem. There seems no doubt, at any rate we may assume upon the evidence, that money was actually applied to the payment of the rent which was then due in respect of the mortgaged property, and that the sale of that property was thereby prevented. That, no doubt, was the intention of the parties to the loan. The Subordinate Judge says upon that: “The tenure being under the law bypothecated for its arrears, one who saved the tenure from being sold at a sale for its own arrears by advancing money, and thereby preserves another person's mortgaged right from being extinguished, places himself in the position of a first mortgagee and all other lien-holders under him;” and he refers in illustration of that to the observations of Mr. Justice Mitter in 18 W.R, 404—Baboo Dutt Jha v. Pearee Kaunt. There is no authority for any such general proposition of law as is here laid down by the Subordinate Judge. The case which he refers to has no bearing whatever upon the question. The marginal note is not correct. There, all that Mr. Justice Dwarkanath Mitter says is, that, if the vendor of the plaintiff in that case, or the plaintiff himself, was entitled on equitable grounds to be considered as the assignee of the first mortgagee, then his remedy would be one of a particular kind. Whether the plaintiff had those rights or had not, it was not necessary to consider in that case. The suit was dismissed upon another ground. Then the respondents have also relied upon a decision of Mr. Justice Romesh Chunder Mitter and myself in 22 W.R, 411—Syud Enayet Hossein v. Muddun Mooree Shahoo. That case depends upon a totally different principle. There the person, who came forward and paid the money in respect of which he afterwards claimed a lien upon the property, was a co-sharer, and he advanced the money in order to pay the Government revenue which was due upon the property. That case is distinguishable from this, upon the ground that was a case in which the plaintiff, being one of the several persons whose duty it was to discharge the burden, came forward and discharged the whole of that burden. No authority has been shown to us for extending that principle to a case where a person, having no interest in the matter, conies forward to discharge a burden upon property, and we cannot so extend it. The decision in that respect must be reversed, and this appeal allowed with costs.
The result will be, that the whole suit will be dismissed with coats of this Court and of the Court below.