Judgement

Appeal from a judgment and decree of the High Court (January 27, 1916) modifying a decree of the additional Subordinate Judge of Aligarh.

The suit was instituted by the deceased respondent in July, 1909, to obtain a decree for the sale of certain immovable property under a mortgage dated June 12, 1879, assigned to the respondent on May 21, 1909. The defendants were the respondents, who on February 28, 1884, had obtained a decree for the sale of the property under a mortgage to them dated February 19, 1872, and had bought the property at the sale under the decree. The mortgagee under the mortgage of 1879 was not made a party to the proceedings in 1884. The mortgagors were also defendants to the present suit, but were not parties to the appeal.

66 Law. Rep. 47 Ind. App. 71 ( 1919- 1920)

Matru Mal V. Durga Kunwar 167

The Subordinate Judge gave the respondent a decree conditional upon her paying the appellants the amount which would have been due under the mortgage of 1872.

The High Court modified the decree in the manner appearing from the judgment of their Lordships.

The learned judges in the High Court (Sir H. Richards C.J. and Rafique J.) in the course of their judgment said " As soon as the decree of February 28, 1884, was passed the mortgage debt merged in the decree. It is a mere accident that the answering defendants are the mortgagees under the mortgage of February, 1872, or their representatives. They have no greater rights than any stranger would have had who had purchased the property under the mortgage decree and paid cash for it. In our judgment all that the answering defendants are entitled to is to set up the amount of the decree of February 28, 1884."

1919. Nov. 11. E. B. Raikes for the appellants. The decree of the Subordinate Judge was rightly made. The matter is governed by the decision of the Board in Umes Chunder Sircar v. Zahoor Fatima

(L. R. 17 I. A. 201.), the facts in which are not distinguishable. That decision is not affected by Het Ram v. Shadi Lal. (L. R. 45 I. A. 130.) In the present case there was no evidence that a final order had been made under the Transfer of Property Act, 1882. The mortgages in this case were anterior in date to the Transfer of Property Act, 1882, and the procedure consequently was not regulated by Het Rams Case. (L. R. 45 I. A. 130.) [Reference was also made to Gopal v. Pirthi Singh. (( 1902) L. R. 29 I. R. 118.)]

Parikh for the respondent. It was decided in Het Rams Case (L. R. 45 I. A. 130.) that upon a sale decree being obtained under s. 89 of the Transfer of Property Act, 1882, the mortgage in suit is extinguished. That decision is conclusive in the respondents favour. In Umes Chunders Case (L. R. 17 I. A. 201.) both the mortgage and the decree were before the Transfer of Property Act, 1882, the provisions of which were therefore immaterial to the case. The present case is governed entirely by that Act, which in 1884 provided the only procedure by which a sale decree could be obtained under a mortgage. It is to be presumed that a final decree was made before the property was sold.

Raikes replied.

The judgment of their Lordships was delivered by

SIR JOHN EDGE. This is an appeal from a decree, dated January 27, 1916, of the High Court at Allahabad, which modified a decree, dated July 8, 1914, of the additional Subordinate Judge of Aligarh.

In the suit in which this appeal has arisen the appellants here or those whom they represent were defendants, and the plaintiff was Musammat Durga Kunwar, who was the respondent to this appeal but is now dead ; her personal representative is now the respondent. The suit was brought on July 8, 1909, by Musammat Durga Kunwar to obtain a decree for the sale of certain immovable property within the jurisdiction of the Court of the Subordinate Judge, and was based upon a mortgage of the property dated June 12, 1879, of which she became the assignee on May 21, 1909, by an assignment from the representatives of one Murli Dhar, to whom the