Bhagwati Prasad v. Thakur Prasad Sahu — 1966 DIGILAW 189 (ALL)

JUDGMENT B. Dayal, J. - These are two connected second appeals arising out of two rival suits for redemption of the same property. It appears that one Ram Prasad was the original owner of this property who usufructuarily mortgaged it in favour of Khaderu and Sukkhan in 1904. This mortgage was usufructuary mortgage and the interest of the mortgagee was transferred from time to time and now vested in Thakur Prasad. The equity of redemption also changed hands. Ram Prasad the original mortgagor had two daughters Sampta and Lakhpatta. These daughters transferred their interest in favour of Smt, Krishna and Shiva Nath. Upon this transfer, one Bansi Lal, who is now represented by his transferees Lachman Prasad and Mohan Lal filed a suit for pre-emption which was suit No. 441 of 1941. The suit was dismissed by the trial court, but was decreed by the lower Appellate Court on 22-9-1943. Smt. Krishna and Shiva Nath filed a second appeal against that decree. In the meanwhile, Banshi Lal deposited the preemption money and in execution of that decree obtained formal possession of the house on 16-11-1943. In second appeal, however, his decree for preemption was modified, and it was held that the pre-emptor Banshi Lal was entitled to only a portion of the house which was lying in one Mohalla in which the custom of preemption prevailed, but he was not entitled to pre-empt the house to the extent of the other portion which existed in another Mohalla. After obtaining this decree from the second appellate court, Smt. Krishna and Shiva Nath did not take a similar step of applying under Sec. 144 and taking formal possession of that portion of the house over which the pre-emptor was declared not to have any right to pre-empt. Thereafter, Banshi Lal made a gift of his rights on the 9th May, 1952 in favour of Lachman Prasad and Mohan Lal and they filed a suit No. 439 of 1952 for redemption of the entire mortgaged house and to this suit, they not only made Ram Khilawan and Thakur Prasad parties as representing the mortgagees but they also made Smt. Krishna and Shiva Nath defendants in the suit. During the pendency of the suit Smt, Krishna and Shiva Nath transferred their interest in favour of Bhagwati Prasad who was also made a defendant thereafter. During the pendency of the suit Smt, Krishna and Shiva Nath transferred their interest in favour of Bhagwati Prasad who was also made a defendant thereafter. In the same way Bhagwati Prasad also filed a suit No. 870 of 1952 for redemption of the whole house, and in this suit also, not only the representatives of the mortgagees were impleaded but also Lachman Prasad and Mohan Lal as representing the interest of the pre-emptors. Thus, before the trial court, there were two suits, one by the pre-emptors and the other by the mortgagors to redeem the whole house, and since all the parties were joint in both the suits, there was no difficulty in adjusting the equities between them. 2. The trial court as well as the lower appellate court dismissed the suit of Bhagwati Prasad and decreed that of Lachman Prasad and Mohan Lal. Second Appeal No. 1525 of 1957 has been filed by Bhagwati Prasad against the dismissal of his suit No. 870 of 1952, while second appeal No. 1427 of 1957 has been filed by Bhagwati Prasad against the decree passed in the suit of Lachman Prasad and Mohan Lal No. 439 of 1952. 3. The only ground on the basis of which both the courts below decreed the suit of the pre-emptors in full and dismissed that of the mortgagors was that after the preemption decree for the whole house which had been passed by the first appellate Court in the preemption suit, the pre-emptor had taken formal possession of the house in execution of the decree. When, in second appeal that decree had been modified, the mortgagors did not apply under Sec. 144, C. P. C. to take back possession of that portion of the house for which the pre-emption suit had been dismissed by the second appellate court. It was held by the courts below that by not taking possession under Sec. 144 of the Code of C. P. within the limitation prescribed under Article 181 of the Limitation Act, the mortgagors lost their interest in that part of the house, and therefore, they had no right left to redeem the property. The whole question turns upon a decision whether in a case like this, Sec. 144 of the C. P. C. had any application and Bhagwati Prasad or h predecessors were bound to apply under that section for restitution. 4. The whole question turns upon a decision whether in a case like this, Sec. 144 of the C. P. C. had any application and Bhagwati Prasad or h predecessors were bound to apply under that section for restitution. 4. Sec. 144 of the Code of C. P. is as follows: - (1) Where and in so far as decree or an order is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal. (2) No suit shall be instituted for the purpose of obtaining an restitution or other relief which could be obtained by application under sub-Section (1). 5. This section merely states that if a person became entitled to an benefit by way of restitution of otherwise on account of the change in the decree, he would then be entitled to make an application for that restitution, and under Cl. 2, a suit would be barred for that purpose. It has to be seen, therefore, whether the mortgagors in the present situation had become entitled to any restitution by the alteration of the preemption decree. All that had been done by the first appellate court was to entitle the pre-emptor to deposit the whole of the amount and to become the owner of the equity of redemption. At that stage, mortgagee was in possession of the property and the mortgagors whose rights were being pre-empted were merely entitled to the equity of redemption. In second appeal, this decree was modified and the pre-emptor was held entitled to a part of the equity of redemption and not the whole. After this decree in the second appeal, the mortgagors were not entitled to take back possession of any tangible property. In second appeal, this decree was modified and the pre-emptor was held entitled to a part of the equity of redemption and not the whole. After this decree in the second appeal, the mortgagors were not entitled to take back possession of any tangible property. They become entitled by virtue of the decree itself to a part of the equity of redemption and the only right which accrued to them was to redeem the property either in whole or in part as the circumstances may require, by virtue of having become co-owners of the property. 6. Under Sec. 144 as quoted above, the necessity to make an application under Sec. 144 of the C. P. C. only arises if the person successful in appeal has been dispossessed of certain property and he has to take it back on success. In the present case, he was not disturbed in the possession of any property which may have been in his possession, and it was not necessary for him, therefore, to make any application under Sec. 144 of the C. P. C. 7. The main argument on behalf of the respondent being that the respondent having obtained formal possession over the whole house in execution of the preemption decree which he obtained from the first appellate court, he became entitled to the whole house and unless the decree in second appeal which altered the decree of the first appellate court, was put into execution or enforced under Sec. 144, Cr. P. C., the transferee of the mortgagor could not claim any right to the property. We are unable to agree with this contention also because the property was in possession of the usufructuary any mortgagee and all that the preemption decree of the first appellate court gave to the pre-emptor was a right to redeem the whole of the house and such a decree was not capable of execution. The proceedings taken by the pre-emptor in execution of the decree of the first appellate court were unnecessary and useless proceedings and did not affect the right of any party. In Sita Ram Pande v. Madho Pande, 1914 ALJ 521 the learned single Judge had to consider a very similar position. In that case also property had been mortgaged under a usufructuary mortgage. In Sita Ram Pande v. Madho Pande, 1914 ALJ 521 the learned single Judge had to consider a very similar position. In that case also property had been mortgaged under a usufructuary mortgage. The equity of redemption was then sold and the pre-emptor successfully got a decree for preemption in respect of equity of redemption, but he did not put his decree into execution, and when he applied for mutation of his name in revenue papers, it was contended that unless he obtained possession in execution of his decree he could not be deemed to be in possession and so his name could not be entered. This was repelled by the learned Judge, who decided the case and it was observed. "It is an admitted fact that in the preemption suit the plaintiff did not ask for possession for the simple reason that the property which he sought to preempt was a bare equity of redemption, an intangible right of which no possession could be granted".......... 8. This case was approved by a Division Bench in Raghubir Singh v. Jodha Singh, 1923 ALJ 521. That was also a case where property had been mortgaged under usufructuary mortgage and the equity of redemption when sold were pre-empted. The preemption decree was not executed and it was pleaded that the pre-emptor not having executed his decree for 12 years had lost all right to the equity of redemption. This was not accepted and it was held that on payment of preemption money the pre-emptor became owner of the equity of redemption. The Bench observed as follows : - "The same point was considered by a learned Judge of this court in the case of Sita Ram Pande v. Madho Pande, 1914 ALJ 521. That was also a case in which no possession could be delivered, the pre-emptor being himself in possession in another capacity. The argument was put forward that unless he applied for formal delivery of possession under Order 21, rule 36, he obtained no right as proprietor in virtue of his decree. That contention was, we think, rightly repelled by the court. In this case if after complying with the condition of the preemption decree Bharat Singh had proceeded to redeem Ganga Rams mortgage, it is clear that his right to do so could not have been disputed." 9. That contention was, we think, rightly repelled by the court. In this case if after complying with the condition of the preemption decree Bharat Singh had proceeded to redeem Ganga Rams mortgage, it is clear that his right to do so could not have been disputed." 9. We respectfully agree with these observations and are of opinion that the execution proceedings and delivery of a formal possession in the preemption decree passed by the first appellate court was a superfluous proceeding and gave no better title than the decree itself. It was not also necessary for the representatives of the mortgagor after the variance of the decree in the second appeal to make an application under Sec. 144 of the C. P. C. and thereby formally enforce the decree passed in second appeal. 10. The position therefore, is that under the decree of the High Court in the preemption suit Banshi Lal, the pre-emptor was held to be entitled to pre-empt an area of 340 Sq. feet and was held not to be entiled to pre-empt the remaining area of 420 Sq. Feet. The preemption money was also proportionately divided and it was held that the pre-emptor was liable to pay only Rs. 66/10/8. The balance of Rs. 333/5/4 if paid by the pre-emptor would be refundable to him. The mortgage is being sought to be redeemed by both the co-owners, as they have now become, after preemption, and the mortgage money is also, therefore, payable by them in the some proportion in which they own tire house. Since the integrity of mortgage had not been broken, both the co-sharers had to file a suit for redemption of the whole mortgage, but since both the suits have been joint and all the parties are before the court, mutual adjustment can be made in these very suits and it is not necessary to decree either one suit or the other in its entirety. We, therefore, direct that both the appeals are partly allowed. Suit No. 870 of 1952 is decreed for redemption of the house to the extent of 420 Sq. feet while suit No. 439 of 1952 is decreed for redemption of the house to the extent of 340 Sq. feet. Both the parties will pay the mortgage money proportionately. We, therefore, direct that both the appeals are partly allowed. Suit No. 870 of 1952 is decreed for redemption of the house to the extent of 420 Sq. feet while suit No. 439 of 1952 is decreed for redemption of the house to the extent of 340 Sq. feet. Both the parties will pay the mortgage money proportionately. If Banshi Lal or his transferees Lachman Prasad and Mohan Lal have paid anything more than their share in the preemption money or of the mortgage money they will be entitled to receive back that money from the person who has received it. 11. In view of the circumstances of the case the appeals are partly allowed, but parties will bear their own costs throughout.