Judgement

Appeal (No. 85 of 1930) from a decree of the High Court (March 27, 1929) modifying a decree of the Subordinate Judge of Burdwan (July 24, 1926).

The suit was instituted by the appellant against the respondent and other defendants (who were pro forma respondents) claiming a declaration that under a mortgage decree which he had obtained he was entitled to a further charge in respect of arrears of revenue which accrued after the date of the decree and before the sale thereunder. Defendants Nos. 1 to 6 represented the mortgagors. The respondent (defendant No. 7) held mortgages subsequent to the appellants and had obtained decrees thereunder.

The facts appear more fully from the judgment of the Judicial Committee.

The trial judge made a decree for payment of the sums in question with interest to the institution of the suit, and that in default of payment the amount, with further interest accrued, should be realized by sale of the mortgaged property or a part thereof.

An appeal to the High Court was allowed by a judgment delivered by B. B. Ghose J. and concurred in by Panton J. A decree was made directing that the plaintiff should have a money decree against defendants Nos. 1 to 6, but that the suit as against defendant No. 7 should be dismissed. The decretal amount would be a charge upon the surplus sale proceeds, if any, after satisfying the mortgage decrees of the plaintiff and the defendant No. 7. The learned judges were of opinion that a mortgagee could not enforce a charge in respect of revenue paid by him by bringing a separate suit, but could do so only by tacking the amount to his claim in a suit brought on the mortgage. The judgment is reported at I. L. R. 57 C. 298.

1931. April 27, 28. Dunne K.C. and Jinnah for the appellant. The High Court agreed with the view of the Subordinate Judge that the appellant paid the revenue bona fide in order to protect his interest. That being so, under Act XI. of 1859, s. 9, and the judgment of the Board in Nugenderchunder Ghose v. Kaminee Dossee (( 1867) 11 Moo. I. A. 241.), he was entitled to a charge on the property " against all persons interested therein." The decision in the above cited case as to the remedy does not govern this case, as there the suit merely sought a personal decree against the widow of the mortgagor and raised no claim against the estate. There is no valid reason why the charge should not be given effect upon the property being brought to sale. The mortgage expressly provides that revenue paid by the mortgagee shall be realizable out of the property. Order xxxiv., r. 5, does not provide, as did s. 89 of the Transfer of Property Act which the rule replaced, that the security shall be extinguished on the passing of a final decree. Under the decision of the High Court a mortgagee has no method of enforcing the charge which the law gives him upon the property for revenue paid after the date of the decree.

E. B. Raikes K.C. and Parikh for the respondent. The principle to which effect was given in Sundar Koer v. Sham Krishen (( 1906) L. R. 34 I. A. 9.) and in Jagannath Prosad Singh Chowdhury v. Surajmal Jalal (( 1926) L. R. 54 I. A. 1.), in which the order advised in Raghunath Prasad v. Sarju Prasad (( 1923) L. R. 51 I. A. 101.) was explained, governs this case. That principle is that the right to security given by a mortgage becomes fixed at the date of a final mortgage decree. It is conceded that Het Ram v. Shadi Lal (( 1918) L. R. 45 I. A. 130.) and Matru Mal v. Durga Kunwar (( 1919) L. R. 47 I. A. 71.) were decided under the Transfer of Property Act. Although Sukhi v. Ghulam Safdar Khan (( 1921) L. R. 48 I. A. 465.) was decided under the Code of 1908, it does not affect the present question. A mortgagee who postpones bringing the mortgage property to sale under his decree, cannot meanwhile add charges for revenue and so prejudice the position of subsequent mortgagees; the legislature cannot have intended that.

Dunne K.C. in reply. Order xxiv. effected an al