9911796707
|
Home
Issues Involved:
1. Validity of the mortgage due to lack of guardian's sanction. 2. Right to pay the mortgage amount by installments. 3. Competency of the Trial Court to pass a final decree for foreclosure. 4. Locus standi of the respondent to maintain the appeal and right to redeem the mortgage. 5. Competency of the certificate granted by the High Court. Issue-wise Detailed Analysis: 1. Validity of the Mortgage Due to Lack of Guardian's Sanction: The respondent contended that the mortgage was void as the guardian of the minor mortgagee did not obtain the sanction of the District Judge before advancing the loan. The Trial Court rejected this contention, and the High Court upheld this decision, affirming that the mortgage was valid despite the lack of sanction. 2. Right to Pay the Mortgage Amount by Installments: The mortgagors claimed that they should be allowed to pay the mortgage amount by installments as per the Bengal Money Lenders Act. This contention was also rejected by the Trial Court, and the High Court affirmed this decision, denying the mortgagors the right to pay by installments. 3. Competency of the Trial Court to Pass a Final Decree for Foreclosure: The Trial Court initially passed a preliminary decree for sale instead of foreclosure due to an accidental slip. The final decree was for foreclosure, correcting the error. The High Court set aside the final decree, stating that the preliminary decree was for sale, not foreclosure. However, it was held that the Trial Court had the inherent power under sections 151 and 152 of the Code of Civil Procedure to correct its error and pass a final decree for foreclosure, as intended initially. 4. Locus Standi of the Respondent to Maintain the Appeal and Right to Redeem the Mortgage: The respondent, an auction purchaser of part of the equity of redemption, contended that he had the right to redeem the mortgage. The High Court allowed his appeal, stating he had sufficient interest to participate in the proceedings. However, it was held that under the doctrine of lis pendens, the respondent, having purchased the property pendente lite, was bound by the result of the litigation. Since the final foreclosure decree extinguished the right to redeem, the respondent had no right to redeem the mortgage. 5. Competency of the Certificate Granted by the High Court: The respondent argued that the certificate granted by the High Court was incompetent as the judgment was not final but a remand order. It was held that the High Court's judgment was final in deciding the respondent's locus standi and setting aside the final decree. Therefore, the certificate was competent. Final Judgment: The appeal was allowed, the High Court's judgment and decree were set aside, and the Trial Court's judgment and decree were restored. The respondent was ordered to pay the appellants' costs throughout. The final decree for foreclosure was upheld as validly passed by the Trial Court, and the respondent's right to redeem the mortgage was extinguished.
|
