Mohammad Ismail v. Lala Chattar Sain — 1970 DIGILAW 88 (ALL)

ORDER M.N. Shukla, J. - This execution second appeal raises an important question of law as to whether the judgment debtor was entitled to the benefit of the provisions of Order 34, Rule 14 Code of Civil Procedure. 2. The facts giving rise to the appeal are that a decree for mesne profits was passed against Mohammad Ismail Appellant in original suit No. 59 of 1955 which was a suit for recovery of rent upon the basis of rent note. It was admitted between the parties that the property in dispute was originally purchased by one Mohammad Sadiq, brother of Mohammed Ismail, that Mohammad Sadiq had executed a usufructuary mortgage on 27-8-1935 in favour of the decree-holder Lala Chattar Sain, that on the same date Mohammad Sadiq also executed a rent note in favour of the decree holder under which he became a tenant of the premises on a monthly rent, that in 1948 Mohammad Sadiq migrated to Pakistan and his brother Mohammad Ismail, the present judgment debtor, had been in possession of the houses, that the suit was finally decreed in the second appeal by the High Court with the findings that the Defendant was in possession and liable to pay damages for use and occupation to the Plaintiff, who was the usufructuary mortgagee of the entire house. The decree-holder wanted to sell the equity of redemption in the execution of the said decree. 3. An objection u/s 47 CPC was filed on behalf of the judgment debtor Mohammad Ismail on the ground that the application of the decree holder was barred Under Order 34, Rule 14 CPC because the amount arose out of the mortgage. 4. Both courts dismissed the judgment-debtor's objection and hence this second appeal. The short point which falls for determination is as to whether the provisions of Order 34, Rule 14 CPC are attracted to the facts of the present case. I have heard the learned Counsel for the parties and also perused the various rulings cited by them. 4. Both courts dismissed the judgment-debtor's objection and hence this second appeal. The short point which falls for determination is as to whether the provisions of Order 34, Rule 14 CPC are attracted to the facts of the present case. I have heard the learned Counsel for the parties and also perused the various rulings cited by them. It appears that the present case is not covered by any direct authority on the point and therefore, it has to be decided on an interpretation of the language of Order 34, Rule 14 CPC which reads as follows: 14 (1) Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage and he may institute such suit notwithstanding anything contained in Order II, Rule 2. (2) Nothing in Sub-rule (1) shall apply to any territories to which the Transfer of Property Act, 1882, has not been extended. The cardinal requirement for invoking the above rule is that the decree must have been obtained for the payment of money in satisfaction of a claim arising under the mortgage. If Rule 14 had simply used the words "a decree for a claim arising under the mortgage" the ambit of the provision would have been much wider and those words would have been susceptible of an interpretation such as was sought to be put by the learned Counsel for the Appellant. The phraseology of the rule, however, appears to be more restrictive in its scope and is not amenable to a wider amplitude. The decree must relate to the payment of money in satisfaction of a claim arising under the mortgage. The well-known claims arising under a mortgage can be only those relating to the mortgage money i.e. the amount secured and the interest thereof. Any other claim, though remotely connected with the mortgage, cannot strictly speaking be said to be a claim arising under the mortgage for the satisfaction of which the decree for payment of money has been passed. The well-known claims arising under a mortgage can be only those relating to the mortgage money i.e. the amount secured and the interest thereof. Any other claim, though remotely connected with the mortgage, cannot strictly speaking be said to be a claim arising under the mortgage for the satisfaction of which the decree for payment of money has been passed. In other words, the mere circumstance of a Plaintiff being a mortgagee and by virtue of that position being entitled to a certain amount of money will not be sufficient to characterise his claim as one arising under the mortgage for payment of which the mortgagee has obtained a decree. Besides, the mortgage money and the interest, there can be other claims also which may accrue in favour of a mortgagee but they would not be precisely claims pertaining to the mortgage as such. In this view of the matter I think the intention of the Legislature in providing the bar Under Rule 14, Order 34 CPC was merely to protect the equity of redemption of a mortgagor by restricting its scope to claims arising per se from the mortgage. The other incidental or remote claims indirectly connected with the mortgage would not be covered by the bar indicated in the proviso. Keeping this underlying principle in mind the various tangible tests may be applied according to the facts of a case for determining whether a particular decree was for payment of money in satisfaction of a claim arising under the mortgage. Thus, for instance, one very reliable and oft applied test is as to whether the two acts form part of a single transaction. If from the facts of a case it can be inferred that the lease was also a part of the mortgage transaction, the rule embodied in Order 34, Rule 14 CPC would be clearly applicable. It may be found as a matter of fact that the lease in favour of the mortgagor regarding the mortgaged property is a part of the transaction of the mortgage itself and is merely a machinery for realising interest etc. It may be found as a matter of fact that the lease in favour of the mortgagor regarding the mortgaged property is a part of the transaction of the mortgage itself and is merely a machinery for realising interest etc. If such inference is warranted by the facts of a case the equity of redemption cannot be brought to save any execution of the decree for rent obtained on such lease but the rule is not applicable when a usufructuary mortgagee has simply leas, ed the mortgaged property to the mortgagor and sues him for rent. 5. Applying these general rules to the facts of the present case, it would be evident that the judgment debtor could not successfully invoke the aid of Order 34, Rule 14 Code of Civil Procedure. In the first place, it has to be noted that the Defendant was not a party to the original transaction of mortgage at all. The property belonged to Mohammad Sadiq, who executed the mortgage in the year 1935. In fact, the Defendant came into the picture only as a result of the compromise decree in the partition suit between the Defendant and his brother Mohammad Sadiq to which the Plaintiff was not a party. Thus, the present case cannot be regarded as one by a mortgagee for the payment of money and in satisfaction of a claim arising under the original mort gage. The decree for mesne profits was sought merely on the basis that the Plaintiff was kept out of possession. It is not a claim directly flawing from the mortgage itself. On the facts of the case this claim arose long after the transaction of the mortgage and when the present Defendant was inducted into possession. I have also perused the rent note which is on record and I am unable to find any clear recital to the effect that the rent money was payable by way of adjustment towards the interest, the result is that the alleged lease cannot be regarded as a part of the mortgage transaction itself. Yet another circumstance which stands in the way of the Appellant is the fact that the High Court in the second appeal arising out of suit No. 59 of 1955 clearly held that the relationship of landlord and tenant did not exist between the parties. Yet another circumstance which stands in the way of the Appellant is the fact that the High Court in the second appeal arising out of suit No. 59 of 1955 clearly held that the relationship of landlord and tenant did not exist between the parties. When the plea of tenancy itself was rejected by the High Court in the previous suit, it is different to hold that a lease was executed as part of the mortgage transaction in such a manner as to bring the case within the scope of Order 34, Rule 14 Code of Civil Procedure. No doubt, this provision has been enacted for the benefit of the mortgagors, the apparent intention of the Legislature being that the mortgagors should not be prejudiced in their right of redemption otherwise than under a suit for sale under the mort gage so that the court may adjudicate upon some of the rights and liabilities of the parties inter se. Still it does not mean that the mortgagor is entitled to the benefit of the provisions of Order 34, Rule 14 CPC in all cases in which a mortgagee has entered into some sort of arrangement with the mortgagor with respect to the property only in those cases its provisions will be applicable in which it can be reasonably inferred that the decree for payment of money has been pissed in satisfaction of a claim arising the mortgage, in other words, in those cases in which the court is satisfied that the transaction in question was a pare and parcel of the mortgage transaction. That happens mostly in cases where the second document whereby the possession support to have been given is merely a device to ensure regular payment of interest which is also secured on the same mortgage property. As I have already indicated above, the facts of the instant case do not warrant any such conclusion. I am, therefore, in agreement with the view expressed by the courts below that the present claim of the Plaintiff did not arise out of the mortgage itself so as to attract the bar contemplated by Order 34 Rule 14 Code of Civil Procedure. The objections preferred by the Appellant u/s 47 CPC were rightly rejected. 6 The result is that this appeal fails and is dismissed but no order is made as to costs. The stay order dated 18-10-1963 is vacated.