9911796707
Advanced Search 
TMI Blog1968 (12) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... the rate of 12 per cent per annum with monthly rests. On January 11, 1948 Shew Balak Pandey filed a suit on his mortgage, being Suit no. 135 of 1948, impleading the puisne mortgagees as parties to the Suit. On December 12, 1949, a preliminary mortgage 'decree in Form 9 of Appendix 'D' in the First Schedule to the Code of Civil Procedure was passed in the said suit. Since the mortgagor did not pay, a final decree was passed on December 4, 1952 in the suit. The decree directed that the mortgaged property should be sold. It contained a further direction for the disbursement of the sale proceeds and it was stated that if any balance was left after payment of the amounts due to Pandey and Mitter, "that shall be applied in payment of the amount payable to the defendant Ganga Dhar Khen a under the aforesaid preliminary decree and in payment of any amount which may be adjudged due to the said defendant Ganga Dhar Khemka for such costs of the suit". On July 4, 1954, the mortgagor, without having the property put to sale paid off the decretal dues of Pandey. On August 5, 1955, the respondent filed the suit out of which this appeal arises, being Suit- no. 2218 of 1955 jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior mortgagee's) " mortgage alive for his benefit and to apply for a final decree. In other words, if the puisne mortgagee redeems the prior mortgage then he can step into the shoes of the prior mortgagee and apply for final decree. The puisne mortgagee cannot apply for the sale unless he pays off the prior mortgage. It is manifest that the puisne mortgagee is added as a defendant in a suit of this description only with the purpose of redeeming the prior mortgage, if he wished and proving his mortgage and having the accounts taken. Such account of the puisne mortgagee is taken because if there is any surplus sale proceeds after meeting the prior mortgagee- plaintiff's claim, he can participate in such surplus sale proceeds as may be available for the satisfaction of the claim of the puisne mortgagee. Essentially therefore the rights of puisne mortgagee-defendant in a prior mortgagee's suit are, first, the right-to redeem the prior mortgage. and, secondly, the right to participate in the surplus sale proceeds. This view is borne out by the decision of the Madras High Court in Vedavyasa Ayyar v. The Madura Hindu Labha Nidhi Co. Ltd.( I.L.R. 42 Mad. 90)in which it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtgagee, but also in favour of the second mortgagee.(See the decision of Sale, J. in Kissory Mohan Roy v. Kally Churn Ghose(8) and in Kissory Mohan Roy v. Kally Churn Ghose(I.L.R. 22 Cal. 100). But in a later case, in the matter of Kissory Mohan Roy v. Kally Charan Ghose,(5) Sale,, J. allowed a second mortgagee, who was a defendant, under the liberty retained to him by the preliminary decree, to come in and obtain an order for sale of the property outside Calcutta, which was subject only to the second mortgage, not to the first. This practice of treating the suit as one for the benefit of the second mortgagee was based on the English practice as it appears from the case of Platt v. Mendel([1884] 27 Ch.D.246). But under the Transfer of Property Act the proper procedure is different and the effect of incorporation of the relevant sections in the Transfer of Property Act under 0. 34 of the new Code of Civil Procedure was to put an end to any independent practice on the original side of the Calcutta High Court based on the old procedure. The legal position therefore is that the second mortgagee is merely made a party to the suit in order that he might have an opportunity of redeeming i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st is legally recoverable, the Court may order payment of interest to the mortgagee as follows, namely: (a) interest up to the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage- (i) on the principal amount found or declared due on the mortgage-at the rate payable on the principal or, where no such rate is fixed, at such rate as the Court deems reasonable, (ii) on the amount of the costs of the suit awarded to the mortgagee-at such rate as the Court deems reasonable from the date of the preliminary decree, and (iii) on the amount adjudged due to the mortgagee for costs, charges and expenses property incurred by the mortgagee in respect of the mortgages security up to the date of the preliminary decree and added to the mort- gage-money-at the rate agreed between the parties, or, failings such rate (at the same rate as is payable on the principal, or failing both such rates, at nine per cent per annum), and (b) subsequent interest up to the date of realisation or actual payment at such rate as the Court deems reasonable- (i) on the aggregate of the principal ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
