1949 (8) TMI 27 - HC - Indian Laws

Summary

Issues:
1. Due attestation of the mortgage not proved.
2. Power of the Court to direct sale on a foreclosure mortgage.
3. Payment of fees to the Appellant's Counsel.

Detailed Analysis:

Issue 1: Due attestation of the mortgage not proved
The Defendant's appeal in a suit for foreclosure of a mortgage was challenged on the grounds of due attestation of the mortgage. The Defendant, an after-born son, failed in the lower Court, and the suit was decreed against him. The main argument raised on appeal was the lack of due attestation of the mortgage. The lower Court held that due attestation was established. The Defendant, in his written statement, only denied the execution of the mortgage and the consideration, without specifically challenging the attestation. The Court referred to Order 8, Rule 3, Code of Civil Procedure, emphasizing the need for specific denial of facts in a pleading. The attesting witness, P.W. 1, confirmed the attestation, and the mortgagor's execution was not contested. The Court held that the evidence provided was sufficient to establish attestation, as required by Section 3 of the Transfer of Property Act and Section 68 of the Evidence Act. The Court concluded that the document was validly attested, and the appeal on this issue was dismissed.

Issue 2: Power of the Court to direct sale on a foreclosure mortgage
The Court was asked to consider relief against the foreclosure decree and direct the sale of the property instead. However, it was clarified that a Court cannot direct the sale on a foreclosure mortgage unless it is an anomalous mortgage. In the case of a mortgage by conditional sale, the decree must be for foreclosure, and the Court has no discretion to order a sale. The Court cited a Division Bench case to support this principle, emphasizing that the only remedy for mortgages by conditional sale is foreclosure. As the mortgage in question was not anomalous but by conditional sale, the Court held that it had no discretion and upheld the foreclosure decree.

Issue 3: Payment of fees to the Appellant's Counsel
The last point raised was regarding the Appellant's Counsel's fees. The Counsel had not been paid his fees, and a request was made to award him fees despite not filing a certificate for it. The Court noted that even if the request was valid, it would not have been able to award fees as the client had failed in the appeal. Consequently, the appeal was dismissed with costs.

In conclusion, the High Court of Nagpur upheld the lower Court's decision, ruling in favor of the Plaintiff in the suit for foreclosure of the mortgage. The Court found that due attestation of the mortgage was established, and in the case of a mortgage by conditional sale, the Court had no discretion to order a sale and decreed foreclosure. Additionally, the request for payment of fees to the Appellant's Counsel was dismissed as the appeal failed.