The Oudh cases. Containing cases decided by the Court of the judicial commissioner of Oudh .. online

has nothing but a right to cultivate and occupy, and that though
his rights are not governed by section 5 of the Oudh Rent Act,
he is in no better position than an occupancy tenant to whom
that section applies.

I therefore consider that the Court below was right in
holding that the mortgage in favour of the appellant was in-
valid, and I dismiss this appeal with costs.

(1) 6 O. C, 176.



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314 THE OUDH CASES. fVoL Vn.

FIRST CIVIL APPEAL, No* 5 OF 1904.*



Before Mr^ Rustomjee and Mr. Chanuert



1904. Babu Lal Sahu (Plamtif) v. Ram Pa&shad and oihors

Sep. 7. (Defendants).



Act IV of 1882 (Transfer ofPropeHy Act), ss. 67 and 99^
Suit by mortgagee for sale of equity of redemption of mortgaged
property for amount due under a- simple money decree — Mort"
gage.



In Maroh 1893 the defendaat mortgaged certaia immoyeable property to
the plain til! for one lac of rupees. In Maroh 1896 the defendant ezecated a
Binipk money-bond for Ba. S3,000 in favonr of the plaintiff on which he taed
in, 1898 and obtained a money-decree for Bs. 23^85. In September 1903 in
execution of this decree he caosed the mortgaged property to be attached. On
the strength of this attachment the plaintiff brought a suit in which he
claimed a decree for recovery of the amount due under the decree by sale of
the mortgaged property, i. «., the remaining rights of the mortgagor.

Held that having regard to the provisions of s. 99 of the Tnnsf er of Pro-
perty Act, the plaintiff*8 suit was not maintainable.

The result of the enactment in s. 99 is that a mortgagee who has attached
the mortgaged property in execution of a decree for the satisfaction of a
claim arising under the mortgage, e, g.^ a claim for interest may notwithstand-
ing 8. 43 of the Code of Civil Procedure include that claim in any suit that
he may be able to bring under s. 67 of the Act and that a mortgagee who has
attached the mortgaged property in execution of a decree for the satisfiu^tion
of a claim not arising under the mortgage most first sue on his mortgage
nnder s. 67, if his mortgage admits of sooh a suit, so that the mortgagor
may exerdse his right of redemption. Then if such a suit is brought and the
mortgagor or any other person redeems the mortgage it ceases to stand in
the way of the execution of the money decree and the erstwhile mortgagee
may if necessary proceed to enforce his attachment by sale of the property ; if
on the other hand the mortgage is not redeemed then the property is put-up for
sale and the creditor may if necessary enforce his claim under the attachment
against the surplus proceeds if any or if only a portion of the mortgaged
property has been sold again&t the portion remaining unsold.

* Against the decree of Pandit Bakht Narain, Subordinate Judge, Fysabad
dated 3rd NoTember 1903.



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Vot. VII.] THE OUDH CASES. 315

For Appellakt.— Messrs. F.G.D. Lincoln and B<nid«o Lai. **^bS*'

r.

For Respondents. — Mr, Mohammad Arabi, R*» Prathad

asd othen.

Chamier, a. J. C. — This is an appeal by the plaintiff
against a decree of the Subordinate Judge of Fyzabad where-
by the suit was dispiissed with costs. The facts are few and
simple. On March 1st 1893 the defendant mortgaged certain
immovable property to the plaintifiE for one lac of rupees. On
March 25th 1896 the defendants executed a simple money-bond
for Rs. 22,000, in favour of the plaintifiE on which he sued in
1898 and obtained a decree for Ra. 28,385. In September
1902 the plaintiff in execution of this decree caused the mort-
gaged property to be attached. On the strength of this attach-
ment the plaintiff has brought the present suit in which he
claims a decree for recovery of the amount due under the decree
by sale of the mortgaged property, t. e. the remaining rights of
tiie mortgagor. The question is whether such a suit is main-
tainable. The Subordinate Judge had decided that no such
suit lies and in this he is supported by the decision of the
Allahabad High Court in Azim-uUlah v. Najmunnusa (1) and
Afahabir Shffh v. Saira Bihi (2).

Mr. Lincoln on behalf of the plaintiffrappellant contends
that these decisions are erroneous and he relies on certain pas-
sages in the judgments of the Calcutta High Court in Jaduh
Loll Shaw V. Madhuh Lall Shaw (3), Gauri Sunker Panday
V. Ahhoyeswari Dabee (i) and Shib Da$8 Da^ v« KaU Kumar
Roy (5). I find nothing in these jtidgments which in any way
supports Mr. Lincoln's ocmtention except an obiter dietum in
the first case. In the first case a mortgagee who had obtained a
money decree against his mortgagor on a claim not arising
under the mortgage attempted to bring the rights of the
mortgagor to sale in execution of that decree. It was held that

(1) I. L. R.. 16 All., 416. (3) I. L. R., 17 All., 520.

(3^ I, L. R., 21 Cal., 34. (4) I, L. R., 25 Cal., 262.

(6) I. L. R., 30, Cal., 463,



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316 THE OUDH CASES. [Vol. VII.

^*s*^^^ he could not do so. In the second case a person who had
t-. obtained a decree for money with a charge on certain property

and others, attempted to bring the property to sale in execntion; it was
held that he conld attach the property but that if he wished
to bring it to sale he must bring a suit for sale on the
charge under section 67 of the Transfer of Property Act. In
the third case a purchase by a mortgagee contrary to the terms
of section 99 of the Transfer of Preperty Act was held null
and void.

It is significant that although the Transfer of Property Act
has Been in force for more than 20 years throughout Bengal,
Madras and the United Provinces and has been in force in
-Bombay for more than eleven years no instance can be quoted
of a suit for sale under section 67 of the Act having been main-
tained upon a charge supposed to have been cheated by an
attachment levied in execution of a money decree.

Mr. Lincoln contends that by reason of section 99 a mort-
gagee who has attached the rights of a mortgagor in execution
of a decree for the satisfaction of a claim not iarising under his
mortagage may bring a suit under section 67 for recovery of the
decretal amount by sale of the rights of the mortgagor in the
mortgaged property even if no charge is created by the decree.
I cannot accept this contention. In my opinion a suit cannot
be brought under section 67 except by a mortgagee or chargee.
No part of the section is applicable to a suit on a mere attach-
ment. I asked Mr. Lincoln whether he could produce any
authority for the obiter dictum in the first of the cases above
cited to the effect that a mere attachment creates a charge. He
could produce none and I know of none. An attachment under
section 274 of the Code of Civil Procedure merely prevents
alienation to the prejudice of certain claims. It does not
confer title; see the decisions of the Privy Council in Motai Lai
V. Karrabuldin (1) and the decision of the Full Bench in
Fredrick Peacock v. Madan Gopal (2). In England if a judg-
ment is duly entered up and is followed up by a writ of el^^
jit under which land is actually delivered in execution,* the

(1) I. L. B., 25 Cal., 179. (2) I. L. B^ 29 Cal, 428, ''*"



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ToL. VIL] THE OUDH CASES- 317

judgment by express statutory declai'ation operates as a charge %^h\i

which the creditor may enforce by an order for sale but it seems „ ^' ^ ^
•^ , «. - ^^ Pershad

to me impossible to attribute the same effect to a mere attach- and others.

ment mider section 274 of the Indian Code of Civil Procedure

whioh only prohibits the judgment-debtor from transfering or

charging the property in any way.

But even if it is assumed that an attachment under the
Code of Civil Procedure creates a charge in favour of the judg-
ment-creditor I do not think that the present suit is maintain-
aSle. The argument addressed to us on behalf of the appellant
was to the effect that section 99 of the Transfer of Property
Act authorises a suit under section 67 of the same Act where a
mortgagee in execution of a decree for the satisfaction of a
claim not arising under the mortgage attaches the mortgaged
property. I do not think [so. I think that the section means
that a mortgagee who has attached the mortgaged property
in execution of a money decree may, if he has otherwise
the right to do, sue for sale of the mortgaged property
'' notwithstanding anything contained in section 43 of the Code
of Civil Procedure." The concluding words of the section
appear to apply only to a case where a mortgagee has attached
the mortgaged property in execution of a decree for the satis-
faction of a claim arising under the mortgage, e. ^., a claim for
interest, an4^ section 99 does not appear to enlarge the rights
of a mortgagee by allowing him to sue under section 67 in a
case not provided for by that section ;^ in other words as Sir
Lawrence Jenkins said in Govind Hart Deo v. Parsashram
Mahadev (1) the primary purpose of section 99 is not to increase
but to curtail the power of a mortgagee. The section was
probably intended to give effect to the views expressed by the
Calcutta and Bombay High Courts in Bhuggobutty Dossee v.
Shamachum (2) and Narsidas Jitram v. Joglekar (3) to the
effect that a mortgagee cannot by means of a sale in execution
of a money decree deprive the mortgagor of his right to redeem

i\) 1. L. R., 25 Bom. 161. (2) I. L. R., 1 Cal., 337.

(3) I. L. R., 4 Bom., 57.



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iis



THE O0DH CASEb



[Vol. VI r.



itabu Lai
Subu

7'

Ram Pershad
iiiiii others.



tlie mortgage. The result of the enactment in section 99 seenir^
to me to be that a mortgagee who has, attached the mortgaged
property in execution of a decree for the satisfaction of a claim
arising under the mortgage, e. g,j a claim for interest may not-
withstanding section 43 of the Code of Civil Procedure include
that claim in any suit that he may be able to bring under section^
67 of the Act and that a mortgagee who has attached the mort-
gaged property in execution of a decree for the satisfaction of a
claim not arising under the mortgage must first sue on hif^
mortgage under section 67, if his mortgage admits ofsucb^
suit, so that the mortgagor may exercise his right of redemption.
Then if such a suit is brought and the mortgagor or any other
person redeems the mortgage it ceases to stand in the way ot
the execution of the money-decree and the erstwhile mortgagee^
may if necessary proceed to enforce his attachment by sale of
the property; if on the other hand the mortgage is not redeemed
then the property is put up for sale and ihe creditor may if
necessary enforce his claim under the attachment against tht^
surplus proceeds if any, or if only a portion of the mortgaged
property has been sold against the portion remaining unsold^
Section 99 is curiously worded but I find, it impossible to cons-
true it in the way suggested by Mr. Lincoln*. I think that the
construction put upon it by the Allahabad High Court which
has remained unchallenged for many years is correct, t would
therefore dismiss thb appeal with costs.

RusTOMJEE, 0. A. J. C.^I take the same view of the law
• as my learned colleague has taken and agree to the order
proposed by him.



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Vol VII.J THE GUDH CASKS. SlO

SECOND CIVIL APPEAL No. 262 OF 1903. *



Before Mr. WelU.



NoKHBY Lall {Plaintiff) i\ Nand Lal and others 1904.
(Defendants). J'JNB 30.



Fictitiaus 9al€^eed, suit to $et aside — Suit for possession of
property transferred to defendant under fictitious sale^ed —
Indian Limitation Act^ seh. Uy art. 91. ^



Q sold c^nsia properties to his grandson, the defendant. TIm plaintiff
who ma also bis grandson sued for his one^third share in the property. It was
foand that the family was not joitt<r«t the time of the execution of the sale^leed
and that the sale-deed was a Qctitioos transaction entered into to defeat creditors.
Bat the Distriot Judge dismissed the suit on the ground that the plaintiff
conld not get the property without setting aside the sale-deed^

HMy that as the sale-deed was not intended to be operative but was a
mue fictitious ttansaction no suit to set It aside was necessary under arficle
f 1 sch. ii of the Indian Limitation Act.

[Sham Lall Ititra %. Amarendio Natb Bose (1>^uk1 Baaku Behari^ Shaba
f . Krishto Oobindo Joardar (2) rs/errsd to,]



Fob Appkllant. — Syed Zahur Ahmad and Babu Mohan LaL

For RBSifOirt)BNT I. — Babn Basdeo Lot and Mr. E. Manuel.

Wells, 0. J. C. — The facts of this case are tiuii Gopi-
nath the grandfather of the plaintifiE-appellant sold certain
properties to the defendant who was also his grandsoa.
It has been found as a fact by the Court below that the
family was not joint at the time of the execution of the sale-
deed. It has also been found as a fact that the sale-deed
was a fictitioos traosaotion entered into to defeat creditors.
The plaintiff has sued for his one-third share in the pro-
perty. The learned District Judge has held that his suit must

* Against the decree of A. Sabonadiere Esq., District Judge, Hardoi,
emitted 2l8t May 1908, reversing the decree of Pandit Tirbhnan Nath Sopori,
Sabordinate Judge, Hardoi, dated 30th September 1902.

(1). I. L. B., 2, CaL 460. (2). I. L. B., 30, Cal. 432.



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320



THE OUDH CASES.



[Vol. VII.



Kokbey Lai

NandLal
«nd others*



fail as he cannot get the property withoat setting aside the deed
of sale and that a salt to do so is barred by limitation.

It is contended in appeal that the plaintifiE is entitled
to the one-third share which he inherited and that no
«nit to set aside the sale was necessary inasmnch as there
'^as no real sale but only a fictitious transaction. The appel-
lant's pleader referred to the case of Sham Lall JUitra
v. Amarendro Ifath Base (1) in support of the contention that
art. 91 of sch. ii of the Indian Limitation Act only applied to
suits m which the documents sought to be set aside were
intended to be operative against the plaintifiE or his predecessor-
in-title and would remain operative if not set aside. Again
in Banku Behari Shaha v. Krishto Gobindo Joardar (2) it
was affirmed that a document which was never intended by
the executant to be operative does not require to be set aside
or cancelled in order to entitle any person to the possession of
the property covered by it as against the person in whose fevonr
it stands.

For the respondent it is contended that Gopi Nath himself
tjould not have recovered possession of the property without
suing to set aside the deed of sale and therefore the appellant,
his heir is equally precluded. Whatever difficulties Gropi NaA
.might have experienced as the consequence of his own fraudu-
lent act it does not appear to me to follow that this act should
deprive his heirs of their legitimate rights. I consider that
the Calcutta rulings quoted above are strongly in favour of
the appellant.

I allow his appeal and decree his claim with costs in all
Courts.



XI) I. h. R., 23 CaL 460.



(3) I. L. B., 30 CaL 488{». 43S.



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Vol Vn.J THE OUDH CASES. 32i

SECOND CIVIL APPEAL, No. 509 OF 1903.*



Before Mr. Scott and Mr. Chamier^



SoHAN Lal (Plamfif) t. Baldko Fershad and others jg^j^.
{Defendants). Dec. 23.



Oudh Civil Courts Act, Section 18 clause (5) — Jurisdiction of
a Subordinate Judye empowered to try appeals^ ai regards appeals
preferred to his predecessor under Government Notification issued
in his time — Appeal^ disposal of by Subordinate Judge — Receipt ■
of money not purporting to extinguish mortgage^ebt, registration'
of.



A ootificationidlAted SOth December 1900 and issued under pection 18 ctaas^
(3) of the Oudh Ciyil Conrts Act proYided that appeals from decrees and^
orders of the Mansif of Kheri should be (1) preferred to, and (2) heard and>
decided by jR, Subordinate Judge of Kheri. The same powers were conferred:
on his successor J9 b j a Notification dated 29th March 190K

Jleld^ per Scott, J, C, that power to* hear and decide appeals conferred
on B under •the Notification of 29th March 1901 included the power to hear and'
try and dispose of appeals preferred to his predecessors.

Held, per Oiamier, A, J. C, that when an appeal has beeft rfghtly pre«^'
ferred to the Court of Subordinate Judge, the Subordinate Judge presiding itk
that Court is bound to dispose of it whether it was preferred under a Noti-^;
fication issued in his own time or under a Kotification issued in the time of any
of his predecessors.

The appellant brought asuft to recoTcr a ecrtafn sum of money alleged
to be due oil a mortgage executed by the respondents to secure the payment of
Bs. 300 with interest &c., kc. The respondents denied that anything was due
to the appellant on the mortgage and produced a receipt for Rs. 300 simply foE-
the purpose of proving the payment of that sum.

Held, per Seott, J, C, that as the receipt did not purport to extinguish
the mortgage and was not relied on for any other purpose than to prove the
payment of a certain sum of money, it did not require to be registered.



* Against the decree of Pandit Bakht Narain, Subordinate Judge, Eberi^-
dated the 26th August 1901,^ upholding the decree of M. Mohammad Ismail,
Mfintif, Kberi, dated 16tb December, 1900.



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322



THE ODDH CASES.



[Vol. til



Soban Lai

V.

Baldeo

JPetibad axui

' otbertr



For Appellant.— M. Mohammad Nadm,
For Respondent No. 1. — B. Basdeo LaU

Scott, J. C. — ^Thi& appeal has been referred ta a Bench of
two Judges because it is contended for the appellant that the
Subordinate Judge had no jurisdiction to try the appeal from
the decree passed by the Munsif of Kheri.

Appeals from Munsifs in Oudh are provided for by sections
18 and 19 of the Oudh Civil Courts Act. By section 18 (2) an
appeal from a decree or order of a Munsif, when an appeal is
allowed by law, shall lie to the District Judge, but by the 3rd
danse of £h9 same section the Judicial Commissioner may from
time to time, with the previous sanction of the Local Gk)vern-
ment, direct by notification in the Official Oazette that appeals
from alt or any of the decrees or orders of any Munsif shall be
preferred to such Subordinate Judge as may be mentioned in
the notification and the appeals shall be preferred accordingly.
Section 19 provides that every District Judge may from time to
time, subject to the orders of the Judicial Commissioner, refer
to any Subordinate .Judge under his control any appeals
pending before him from the decrees and orders of Munsifs;
and such Subordinate Judge shall hear and dispose .of such
appeals accordingly. The District Judge is also empowered to
withdraw any appeals so referred and hear and dispose of
appeals so withdrawn. Under section 25, Civil Procedure Code,
be may also transfer any appeal pending in a Court subordi-
nate to him and try it himself or transfer it for trial to any
such subordinate court competent to try the same in respect of
its nature and the amount or nature of its subject matter.

On the 31st December, 1900, a notification under section
18 (j() of the Oudh Civil Courts Act was issued directing that
appeals from all decrees and orders of the Munsif of Kheri
i^QUld be preferred to Babu Bam Pershad, officiating Sub-
ordinate Judge while acting as Subordinate Judge of Kheri,
-and the appeal from the decree passed by the Munsif of
Kheri in the present case was preferred to him on tie 26th
January, 1901. It remained undisposed of when, on the 28tfa



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THE OUDH (^ASES.



323



February, 1901, he was succeeded, as Suhardinato Judge of
Ehen, by Pandit Bakht Narain. On the 29th March, 1901 a
Botifioation under section 18 (3) of the Oudh Civil Courts Act
was issued directing that appeals from the decrees and orders of
the Munsif of Eberi should be preferred to Pandit Bakht
Narain. By the notification of the Slat December, 1900, Babu
Bam Pershad was empowered (1) to receive all appeals from
the decrees and orders of the Munsif of Eheri and (2) to hear
and try them. By the notification of the 29th March, 1901,
similar powers were conferred on Pandit Bakht Narain.

For the appellant it is contended that although Pandit
Bakht Narain, while Subordinate Judge of Kheri, could hare
received and^tried the appeal, had it been preferred to him, he
had no authority to hear and try it as it was preferred to his
predecessor. As stated above, the notifications conferred on
Babu Ram Pershad and Pandit Bakht Narain, two separate
and distinct powers, viz.^ (1); that of receiving appeals from the
decrees and orders of the Munsif^ and (2) that of hearing and
^T^ng them. Under the latter power Pandit Bakht Narain
had, in my opinion, jurisdiction to try the appeal in this case
which was preferred to Babu Bam Pershad under the former.

The suit was instituted by the appellant to recover
Rb. 1,710-7 alleged to be doe on a mortgage of a house and shop
execnted by the respondent, Baldeo Pershad, on tb^ 28tb August,
1885, to secure the payment of Bs. 300 with interest at tbe
rate of Bs. 1-4-0 per cent, per men$emj to be paid every six
moBtbsand to be added to the principal and to bear interest at the
same jrate, if not so paid. The defendants denied that anything
was due to the plaintiff on the mortgage and both tiie lower
Courts have found that the interest which 94hounted to Bs. 45
a year was paid out of Bs. 43 a yeiM^, the reftt of a housie, which
admittedly the plaiptiff lei^d from B^Uleo Pershad at that
nUe^wd pwflttWtP lof Bp. i a ye^r uptp the ?Sth Itfarqh,
1893, when P^deo Persbad p^id otl the principal by piortgag-
iog the house and-^hop to Pu;rwan W for Rs. 300 at a lower
r^te of interest.



Sohaa La(
r.

Baldeo
Pershad ftn d

othan*



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324



THE OUDil CASES.



[Vol. VII.



Sobati Lai

V,

Baldeo

Pershad and

others.



In appeal it is contended that the lower Courts should not
have admitted in evidence a receipt for the Rs. 300 as it was
not registered and that the Fact that the appellant signed the
mortgage-deed in favoar of Purwan Lai as a witness is not
evidence that his mortgage-debt was discharged. The other
grounds taken in the memorandum of appeal were not pressed
or referred to at the hearing. As to the first of these grounds
the receipt did not purport to extinguish the mortgage and
moreover was not relied on or used by the lower appellate
Court for any other purpose than to prove the payment of the
Bs. 300 by the defendant, which was in fact admitted by the
plain tifE. Such a receipt does not require to be registered. The
only issue in the suit was whether the interest had been paid up
to the 28th March, 1893, and the question whether the plaintiflf
signed the mortgage in favour of Purwan Jjal was apparently
decided solely because he denied that he had signed it The
fact that he did sign was not evidence and was not used as
evidence to prove that the interest had been paid.

I would dismiss the appeal with costs.

Chamibr, a. J. C. — ^The notification of December 3 1st 1900
provided that appeals from decrees and orders of the MuneiF
of Kheri should be preferred to Babu Ram Pershad while act-^
ing as Subordinate Judge of Kheri and the appeal in th« present
case was preferred to him accordingly. Babu Bam Pershad
had ceased to be Subordinate Judge of Kheri when the appeal
came on for hearing. His successor Pandit Bakht Naraia.
declined to hear the appeal till, as he said, he received bis
'^ appellate powers.'' He heard the appeal after the issue of the
notification of March 29th 1901.

There is a noticeable difference between the language used
in the second part of section 17 of the Oudh Civil Courts Act
and the language used in sub-section 3 of section 18 of the same
Act. Section 17 requires that the Munsif or Subordinate Judge-
on whom enhanced powers are conferred shall be nftmed iu' the
Botification, but section 18 (3) provides that the Judicial Com-
missioner may from time to time with the previous sanction of



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Vol. VIL]



THE OUDH CASES.



325



the Local Governiiiont, direct, by notification in the Official
Gazette that appeals from all or any of the decrees or orders of
any Munsif shall be preferred to such Suborditiate Judge as may
he mentioned. A notification under this section should direct that

appeals from decrees or orders of the Mansif of shall

be preferred to the Subordinate Judge of . This sub-section