Back
HIGH COURT OF ORISSA
JAGANNADHADAS,NARASIMHAM, JJ.
Sarat Chandra Deb
Versus
Bichitrananda Sahu
f. a. No. 4 of 1945
Decided On : 01-03-1950
The Orissa Money-lenders Act, 1939 (Orissa Act III of 1939) - S. 10(1) - Applicability - Final decree in mortgage suit - Whether included - Preliminary decree and final decree in mortgage suit - Distinction - Civil P.C. (5 of 1908), O. 34, Rr. 4, 5 and 6 - Interpretation - Decree - Meaning - Definition in S. 2(g) - Scope - Loan - Meaning - S. 2(i)(3) - Applicability - Purchase of mortgaged property in execution of decree against mortgagor - Whether loan - Subsisting interest in mortgaged property - Determination - Relevant factors - Representation of estate of deceased debtor - Principles - Substantial representation - Scope - Legal representative - Meaning - S. 2(ii), Civil P.C. - Intermeddling with estate of deceased - Mortgage suit - Sale of mortgaged property - Effect - Title of purchaser.
Fact of the Case:
In a mortgage suit, the mortgagor died before the passing of the preliminary decree. The mortgagee obtained a final decree against the legal representative of the mortgagor and purchased the mortgaged property in execution of the decree. The legal representative of the mortgagor filed an application for relief under S. 10(1) of the Orissa Money-lenders Act, 1939, claiming that the amount declared due under the preliminary decree was excessive and that he was entitled to relief under the said provision.
Finding of the Court:
The Court held that S. 10(1) of the Orissa Money-lenders Act, 1939, was not applicable to a final decree in a mortgage suit. The Court observed that the definition of the word "decree" in S. 2(g) of the Act, which includes a preliminary decree and a final decree in the case of secured loans, was not applicable to the final decree in the present case, as the said definition was subject to the condition that there was no repugnancy arising out of the context. The Court found that the context of S. 10(1) indicated that the provision was intended to apply only to preliminary decrees, as the section referred to the passing of a decree for interest which was not what was done by a final decree. The Court also held that the purchase of the mortgaged property by the mortgagee in execution of the decree against the mortgagor did not amount to a loan within the meaning of S. 2(i)(3) of the Act, as the definition of "loan" in the said provision excluded the amount payable under a mortgage by the purchaser at a sale in execution of a decree of a Court or otherwise, of the whole or part of the properties subject to a mortgage, the purchase having been made prior to the coming into force of the Act. The Court further held that the legal representative of the mortgagor had no subsisting interest in the mortgaged property, as the mortgagee had become the valid purchaser of the property in the court auction held in execution of the decree in the mortgage suit. The Court observed that the legal representative of the mortgagor had full knowledge of the execution proceedings and made an unsuccessful attempt to stop the same, but did not intervene in the execution sale to assert his rights of redemption and refrained from taking any proceedings to have the sale set aside or declared null and void, though he failed to obtain possession, and now after the lapse of nearly 10 years from the date of the execution sale his representatives had come forward with the application for relief under S. 10(1) of the Act.
Issues: 1. Whether S. 10(1) of the Orissa Money-lenders Act, 1939, is applicable to a final decree in a mortgage suit? 2. Whether the purchase of the mortgaged property by the mortgagee in execution of the decree against the mortgagor amounts to a loan within the meaning of S. 2(i)(3) of the Act? 3. Whether the legal representative of the mortgagor has a subsisting interest in the mortgaged property?
Ratio Decidendi: 1. The definition of the word "decree" in S. 2(g) of the Orissa Money-lenders Act, 1939, which includes a preliminary decree and a final decree in the case of secured loans, is not applicable to the final decree in a mortgage suit, as the said definition is subject to the condition that there is no repugnancy arising out of the context. The context of S. 10(1) indicates that the provision is intended to apply only to preliminary decrees, as the section refers to the passing of a decree for interest which is not what is done by a final decree. 2. The purchase of the mortgaged property by the mortgagee in execution of the decree against the mortgagor does not amount to a loan within the meaning of S. 2(i)(3) of the Act, as the definition of "loan" in the said provision excludes the amount payable under a mortgage by the purchaser at a sale in execution of a decree of a Court or otherwise, of the whole or part of the properties subject to a mortgage, the purchase having been made prior to the coming into force of the Act. 3. The legal representative of the mortgagor has no subsisting interest in the mortgaged property, as the mortgagee has become the valid purchaser of the property in the court auction held in execution of the decree in the mortgage suit.
Final Decision: The appeal was dismissed with costs.
Judgement
Narasimham, J. :- This is judgment debtors appeal from a final decree dated 21-10-1944 passed by the Subordinate Judge of Cuttack in a mortgage suit. In order to appreciate the points involved in this appeal it is necessary to describe briefly the previous history of this protracted litigation.
2. Patia estate known as Killa Patia is an impartible estate in Cuttack district whose proprietor was one Raja Raghunath Deb in 1913. On 26-2-1913 he executed a simple mortgage for Rs. 1,07,000 mortgaging the entire estate in favour of one Bhaban Sahu, the predecessor-in-interest of the respondent-decree-holders. Again on 13-8-1913 he executed a second mortgage in favour of the same Bhaban Sahu for Rs. 6,000 in respect of the same property. Raja Raghunath Deb died subsequently and was succeeded by one Maian Mohan Deb who assumed the title of Raja Madhusudan Deb. Some time in 1917 the title of Madan Mohan Dab to Killa Patia was challenged by Achhutananda Deb in O. S. No. 762 of 1917 in the Court of the Subordinate Judge of Cuttack. Achhutananda lost the suit in the lower Court and filed an appeal (F. a. No. 1 of 1920) in the High Court. During the pendency of the appeal, Madan Mohan Deb died and the Secretary of State for India was substituted in his place. On 10-3-1922, however, the Secretary of State for India and Achhutananda compromised the litigation in consequence of which the estate was surrendered to Achhutananda who obtained possession in due course in the same year.
3. Sometime in 1926 Bhaban instituted a mortgage suit (O. S. No. 61 of 1926) on the basis of the second mortgage bond dated 13-8 1913 and impleaded Achhutananda (as the latter was in possession of the entire estate by virtue of his compromise with the Secretary of State of India) as the principal defendant. The suit was decreed on 23-8-1927. In 1929, however, the title of Achhutananda to Patia estate was challenged by one Krushna Chandra Dab in 0. S. No. 24 of 1930 which was decreed in his favour on 25-11-1933. During the pendency of this litigation, however, Killa Patia was sold on 20-5-1931 in execution of the mortgage suit (O. S. No. 51 of 1926) of Bhaban Sahu and purchased by the Raja Bahadur of Kanika subject to the first mortgage dated 26-2-1913. The said Raja Bahadur obtained delivery of possession of Killa Patia (excluding the palace and its appurtenances) on 4 9-32. Consequently when Krushna Chandra Deb succeeded in his litigation against Achhutananda in O. S. No. 24 of 1930 he could not obtain possession of the entire estate but only of Patia palace and its appurtenances amounting to 2.44 acres of land. The said Raja Bahadur, apart from being in the possession of the entire estate as a purchaser of the equity of redemption in mortgage suit 0. S. No. 51 of 1926, also acquired further interest in the estate by virtue of two subsequent mortgages taken by him from Madan Mohan Dab as early as 1918 and 1919 and decrees obtained on the basis of those mortgages as early as 1927. In the present litigation, however, it is unnecessary to describe in detail the other interests obtained by the Raja Bahadur of Kanika in Patia estate.
4. On 6-2-1935 the respondents instituted the mortgage suit under appeal (o. S. No. 9 of 35) on the basis of the first mortgage bond for Rs. 107,000 executed by Raja Raghunath Deb on 26-2-1913. They took care to implead as defendants (i) Krushna Chandra Deb who had succeeded in his litigation against Achhutananda in 1933 (o. S. No. 24 of 1930) (ii) the Raja Bahadur of Kanika, (iii) the Raja of Madhupur who had obtained some interest in the mortgaged property by virtue of a transfer in his favour of the subsequent mortgage decrees obtained by the Raja Bahadur, and (iv) Achhutananda himself. Achhutananda and Raja of Madhpur did not contest the litigation and a preliminary decree for rs. 3,71 833-8-0 was passed by the Additional Subordinate Judge of Cuttack on 6-3 37. Against this preliminary decree an appeal was filed before the Patna H
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
