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1956 Supreme(Raj) 153
High Court Of Rajasthan
Judgename : Wanchoo,Modi
KHUBILAL - Appellant
Versus
MALOOMSINGH - Respondent
Second Appeal 67 Of 1955
Decided On : 08/24/1956
Chatar Singh, S.S.BAPNA
In a suit by a puisne mortgagee against a prior mortgagee, the original mortgagor is generally a necessary party, but there may be exceptional circumstances where this may not hold good, such as when the rights of the parties actually before the Court can be determined without affecting the rights and interests of the original mortgagor.
Headnote:
REDEMPTION OF MORTGAGE - LIMITATION - NOTIFICATION EXTENDING PERIOD OF LIMITATION - VALIDITY - APPLICABILITY TO SUIT FOR REDEMPTION OF MORTGAGE - NECESSARY PARTIES - ORIGINAL MORTGAGOR - WHETHER NECESSARY PARTY IN SUIT BY PUISNE MORTGAGEE AGAINST PRIOR MORTGAGEE - EXCEPTIONAL CIRCUMSTANCES - SUIT WITHIN TIME - REMAND FOR FRESH DISPOSAL.
Fact of the Case:
Plaintiffs filed a suit for redemption of two mortgages executed in 1941. The District Judge dismissed the suit as barred by limitation. On appeal, a Division Bench set aside the dismissal and remanded the case for fresh disposal, considering the effect of Section 22, Mewar Limitation Act and a notification extending the period of grace by one year. The Civil Judge held that the notification did not have the force of law and that the original mortgagors were necessary parties. The plaintiffs appealed to the District Judge, who disagreed with the Civil Judge on the validity of the notification but agreed on the necessity of the original mortgagors. The plaintiffs then appealed to the High Court.
Finding of the Court:
1. The notification dated 14-5-1940, published in the Mewar State Gazette, has the force of law and is applicable to suits for redemption of mortgage. 2. The original mortgagor is generally a necessary party in a suit by a puisne mortgagee against a prior mortgagee, but there may be exceptional circumstances where this may not hold good. 3. In the present case, the original mortgagor is not a necessary party due to the special circumstances, including the terms of the deed of mortgage executed by the original mortgagor in favor of the plaintiffs appellants.
Issues: 1. Whether the notification dated 14-5-1940, published in the Mewar State Gazette, has the force of law and is applicable to suits for redemption of mortgage. 2. Whether the original mortgagor is a necessary party in a suit by a puisne mortgagee against a prior mortgagee. 3. Whether the present case falls within the exceptional circumstances where the original mortgagor is not a necessary party.
Ratio Decidendi: 1. The notification dated 14-5-1940 was issued under the signature of Shri Ratilal Antani, who was the Judicial Minister in the State of Mewar at that time. It was subsequently referred to in a subsequent piece of legislation, the Mewar Limitation Act (No. 6) of 1941, which indicates that it had legislative authority. 2. The expression "suits for len den" used in the notification is ambiguous and capable of more than one meaning. It should be interpreted to advance the remedy rather than hamper it. Therefore, the present suit for redemption of mortgage is covered by the notification. 3. In a suit by a puisne mortgagee against a prior mortgagee, the original mortgagor is generally a necessary party because both the puisne and the prior mortgagees derive their rights from the mortgagor and there is no direct relationship between them. However, there may be exceptional circumstances where the original mortgagor may not be a necessary party, such as when the rights of the parties actually before the Court can be determined without affecting the rights and interests of the original mortgagor. 4. In the present case, the original mortgagor is not a necessary party because the terms of the deed of mortgage executed by the original mortgagor in favor of the plaintiffs appellants clearly indicate that the original mortgagors cannot raise any objection that they had redeemed the prior mortgage or paid anything towards the mortgage money to the prior mortgagors.
Final Decision: The appeal is allowed. The judgments and decrees of the Courts below are set aside. The case is remanded to the Civil Judge, Udaipur, for fresh disposal according to law, having regard to the observations made in the judgment of the Bench dated 25-11-1952, apart from those bearing on the question of limitation, which must stand concluded by the present judgment. The costs of this appeal and the costs in the Courts below will abide the result.
MODI, J.
( 1 ) THIS is a plaintiffs second appeal in a suit for redemption of a mortgage and a learned single Judge before whom the appeal came originally has referred it to a division Bench.
( 2 ) THE suit out of which this appeal arises has had a chequered history. The suit was brought in the first instance in 1941 in a Court of the former State of Udaipur. It is unnecessary for the purposes of the present appeal to give the history of this case in detail. It is enough to say in this connection that the District Judge of pratapgarh by his judgment dated 21-9-1931, without deciding any other issues which arose in tins case, himself raised the question of limitation and holding that the plaintiffs had brought their suit a hundred years after the execution of the mortgages which they sought to redeem dismissed it. The plaintiffs then came in appeal to this Court, and a Division Bench to which one of us was a party held by its judgment dated 25-11-1952 that the manner in which the learned District Judge disposed of the suit was not correct and that before dismissing the suit on the ground of limitation he should have considered the effect of Section 22, Mewar Limitation Act which had a bearing on the question of limitation and also of a notification dated 14-5-1940, by which the 8 years period of grace allowed by Section 22 was further extended by one year, that is, up to 30-8-1941. The Bench, therefore, directed that the order of the District Judge be set aside and the suit remanded for determination of the question of limitation afresh. It was also pointed out that as the original mortgagors had been brought on the record some time in May, 1942, that factor should also be considered while deciding the question of limitation. A further direction was given that if the trial Court came to the conclusion that the suit was within limitation it would be in the interests of justice to allow both parties to lead such evidence or further evidence as they may desire to do. The case was sent back for fresh disposal in accordance with the aforesaid directions to the Civil Judge, Udaipur.
( 3 ) BEFORE we proceed further, we may state a few facts relevant to the matters which we are called upon to consider. The suit relates to the redemption of two mortgages with respect to certain properties described in the plaint which are said to belong to the deity of Shri Shitalnathji Maharaj. The plaintiffs case is that with respect to one of these properties a usufructuary mortgage was made on behalf of Shri Shitalnathji Maharaj in favour of Daulji motichandji for Rs. 1201/- by a deed dated Smt. 1896 Asoj Sudi 9 and another mortgage was made on the same date with respect to the remaining property for rs. 901/- in favour of Lalji
Kalyanji, and later Lalji Kalyanji made a sub-mortgage thereof in favour of Daulji Motichandji. Then about a hundred years later Smt. 1997 one Ranglal on behalf of Shri shitalnathji Maharaj made a second mortgage of the properties in question in favour of the plaintiffs for a sum of Rs. 3256/4/-by a registered deed of mortgage dated Smt. 1997 Jeth Vadi 13. It is important to bear in mind that by this deed a sum of Rs. 2102/- making up the amount of the two previous mortgages namely of Rs. 1201/- and Rs. 901/- was left with the plaintiffs to pay off these earlier mortgages. The plaintiffs impleaded as defendants the heirs of Daulji Motichandji who were defendants 1 to 6 in the original plaint and the heirs of Lalji Kalyanji who were defendants 7 to 9 therein. The plaintiffs did not impleacl the original mortgagor as a party to their suit and defendants 10 to 14 as representatives thereof were subsequently impleaded as defendants in May, 1942. The last-named defendants allowed the suit to proceed ex parte against them. The other defendants resisted the suit on a number of grounds but with those grounds we are not concerned for the purposes of this appeal.
( 4 ) WHEN the case went back to the Civil Judge on the judg
