Sawruth Sing v. Bheenuck Sahoo

Kemp, J.:— These cases were remanded by this Court on the 14th April 1869, with directions to the Subordinate Judge to decide upon the bona fides of the deed of sale proffered by the plaintiff. The reply of the Subordinate Judge is now before the Court in the shape of a report under s. 354 of the Code of Civil Procedure, and the result of the enquiry by the Subordinate Judge is that the deed of sale under which the plaintiff claims is a bond fide transaction. The second point taken in special appeal is that the purchaser of the decree which had been obtained by, the mortgagee Ishuree Singh against Gunesh Sahoo, still retains a lien over the property pledged in the mortgage bond.

With regard to this objection, it may be as well to state shortly the position of the parties. It appears) that Gunesh Sahoo, on the 3rd of February 1865, borrowed a certain sum on a mortgage bond from Ishuree Singh and Nunkoo Singh, a suit was brought upon this mortgage bond by the mortgagees on the 18th of November 1865, who obtained a simple money-decree, and neither asked for nor received any decree declaring the mortgage property liable to be sold in satisfaction of their bond. The present defendants bought the share of Gunesh Sahoo in the family property on the 14th September 1867. Whilst the proceedings in the case of Ishuree Singh and Nunkoo Singh were pending, Gunesh Sahoo sold the disputed property to the plaintiff Bheenuck on the 31st January 1866.

Now, it appears to us that at the date of this sale the property of Gunesh was virtually unburdened; no doubt there had been upon it originally a mortgage lien in favor of Ishuree and Nunkoo Singh; but that lien, if it were not altogether done away with, was at all events rendered infructuous by the proceedings of the mortgagees in 1866, before the date of the sale to Bheenuck, when they chose to waive the right of selling the property pledged in satisfaction of their mortgage bond, and to receive instead a simple money-decree. It was contended by Mr. Allan for the special appellant that the purchaser of a money-decree of this description still retains the lien, which the original mortgagee had over the property, inasmuch as he bought the rights of these mortgagees, and these mortgagees could have brought a suit irrespective of their money-decree to have that decree satisfied out of the property pledged in the bond; and in support of this contention, we have been referred to a decision in the case of Prahlad Misser v. Udit Narayan Singh(a). With regard to this precedent) it is enough to say that in that case the decree was obtained upon a mortgage bond, and that it ordered the mortgaged property to be sold in satisfaction of the mortgage debt.

In this case the decree was a simple (money-decree, and therefore the precedent qouted is in no way in point. On the contrary, it appears to us that the principle laid down by the Full Bench in the case of Gupinath Singh v. Sheo Sahay Sing(b) applies to the matter now before us. In that decision it is laid down that a party to whom a property is pledged for a debt, if he contents himself with a simple money-decree against his debtor, cannot execute his decree against the property pledged to the prejudice of a subsequent bond fide purchaser. He may enforce his lien by separate action against the party in possession of the property pledged to him; but he cannot execute his money-decree against the property in the hands of the subsequent purchaser. We do not say that snob a remedy does not exist to the special appellant in this case, but it is quite clear that, up to this time, he has made no endeavour to follow it, and has never sued to have it declared that the property was liable to be sold in satisfaction of the mortgage debt. It seems too much to say that a party, who having obtained a money-decree for a mortgage debt, has still the power to sue to have that decree satisfied by declaring that the mortgaged property is liable to sale, can keep that right hanging over his judgment-debtor for an indefinite period of time; and, if he does not choose to exercise that right himself, can sell that right to another a year afterwards. But however this may be, in the present case no attempt has ever been made to pursue each a right, and the point taken by the special appellant's pleader does not therefore arise. It appears to us, therefore, that this special Appeal must be dismissed with costs.