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1979 DIGILAW 83 (CAL)

Mrityunjoy Dey v. Biswanath Pal

1979-03-07

BIMALENDRA NATH MAITRA

body1979
JUDGMENT The facts are not in dispute. At the instance of the decree-holder, opposite party, who held a grossee mortgage bond, the mortgaged properties were put to sale in the Chandernagore Munsif's Court in the Money Execution Case no. 44 of 1954 for the interest of the mortgage and the property was auction-purchased by one Haradhan Sen (opposite party no. 8), who was none but the judgment debtor no. 5. The partition suit no. 38 of 1958 was filed by the judgment debtors nos. 1 to 3 in the court of the 1st Subordinate Judge, Hooghly, for partition. Then a pre-emption case was filed by the petitioner (Biswanath Pal) for purchasing the 8 annas share of the auction-purchaser, Haradhan Sen (judgment-debtor no. 5). Both the matters were heard together and the pre-emption case was allowed in favour of the petitioner, Biswanath Pal. Thereafter the decree-holder filed the Title Suit No. 24 of 1955 in the Chandernagore court for recovery of the principal and the balance of the interest on account of such grossee mortgage bond and obtained a decree. Then he initiated the Title Execution Case no. 4 of 1963 to execute that decree. The petitioner filed the present misc. case under section 47 of the Civil Procedure Code on the ground that the auction-purchaser (judgment debtor no. 5) of the Money Execution Case no. 44 of 1954 auction-purchased the property free from all incumbrances. Hence the present execution case for the enforcement of the notarial grossee mortgage could not be proceeded with. 2. The decree-holder, opposite party, raised an objection. The learned Munsif dismissed the misc. case. The petitioner preferred an appeal. The appellate court stated that in the sale proclamation, the decree-holder did not mention that the property was subject to any incumbrance. So, the auction-purchaser (judgment-debtor no. 5), Haradhan Sen, acquired the property free from all incumbrances and thus the execution case for selling the self same property could not be proceeded with. The decree-holder, opposite party, was estopped from urging that the previous Money Execution Case no. 44 of 1954 was subject to the lien of mortgage debt. The appeal was allowed and the execution case dismissed. Hence this appeal by the decree-holder. 3. It has been contended on behalf of the appellant that the mortgage was secured by a grossee mortgage bond. 44 of 1954 was subject to the lien of mortgage debt. The appeal was allowed and the execution case dismissed. Hence this appeal by the decree-holder. 3. It has been contended on behalf of the appellant that the mortgage was secured by a grossee mortgage bond. No registration was required under the law, as obtained at Chandernagore at the relevant time. The Chandernagore Merger Act or the Chandernagore Assimilation of Laws Act was not enforced at that time. It is true that the decree-holder did not mention his incumbrance in the sale proclamation. But that was a mere irregularity and it was not fatal to the proceeding. The case of (1) Radhelal v. Kishorilal, in AIR 1935 Lahore 527 has been cited to show that where there was an auction sale of the judgment-debtor's property but the mortgage charge was omitted, the mortgagee is not debarred from taking action on the mortgage. The decree-holder is not estopped from putting the decree into execution and hence, the decision of the learned Munsif should be restored. 4. The learned Advocate appearing on behalf of the respondent has referred to the case of (2) Kalidas v. Prosunnar in 24 CWN 269 to show that a mortgagee, who has purchased at the sale in execution of his decree, is bound by an estoppel that would have bound his mortgagor and he is bound to notify before the sale all incumbrances on the property. The decree-holder, mortgagee, did not specify the incumbrance within the meaning of Clause (c) of Rule 66 of Order 21 of the Civil Procedure Code, when the Money Execution Case no. 44 of 1954 was filed by him. So, he is estopped from setting up his incumbrance. The decision of the learned appellate court is, therefore, correct. 5. It is common ground that the loan was secured by a grossee mortgage bond in the district of Chandernagore. At that time, there was no merger of Chandernagore with India. In the Special Bench case of (3) Susama v. Bibhuti Bhushan 76 CWN 1091, it has been stated that grosses copy of a notarial mortgage bond is in the nature of a decree of a competent court and has the forces of a decree under the French Law and Indian Law. In the Special Bench case of (3) Susama v. Bibhuti Bhushan 76 CWN 1091, it has been stated that grosses copy of a notarial mortgage bond is in the nature of a decree of a competent court and has the forces of a decree under the French Law and Indian Law. It has been admitted by both the sides that under the French Law, the mortgagee had the privilege of suing for the interest alone. This was done in this case and after obtaining a decree only for the interest of the grossee mortgage bond, the decree-holder put the decree into execution. The auction-purchase was made by the judgment debtor no. 5. of course, there was no mention of the mortgage in the sale proclamation, as enjoined by Clause (c) of the Rule 66 of Order 21 of the Civil Procedure Code. The failure to mention the incumbrance, to which the property is subjected, is a mere irregularity. This view was taken in the case of (4) Motilal v. Bhabani in 6 CWN 836. It has already been intimated that an order for pre-emption was passed in the present petitioner’s favour in a pre-emption case. In a pre-emption proceeding, the principle of caveat emptor applies. This principle was laid down by Mr. Justice P.N. Mukherjee in the case of (5) Noor Mohammad v. Siraj in 56 CWN 775 at page 778. When a pre-emption order is passed, the pre-emptor gets only the right title and interest of the party concerned. This principle was laid down by this Court in the Bench case of (6) Sital Chandra v. Mihirlal in 58 CWN 1000 at page 1006. So, after obtaining the order of preemption, the pre-emptor merely stepped into the shoes of the auction purchaser, judgment debtor no. 5 (Haradhan Sen), and the entire bundle of rights and obligations of the latter devolved on him. 6. Here, the auction-purchaser was not a stranger. He was the judgment debtor no. 5. He was aware of the mortgage bond. Hence but for such order of pre-emption the present execution case could have been initiated against the auction purchaser, judgment debtor no. 5. After that pre-emption order was passed, the present petitioner took the property at his own risk. The pre-emptor cannot claim any higher right then that of the auction-purchaser, judgment debtor no. 5. 7. Hence but for such order of pre-emption the present execution case could have been initiated against the auction purchaser, judgment debtor no. 5. After that pre-emption order was passed, the present petitioner took the property at his own risk. The pre-emptor cannot claim any higher right then that of the auction-purchaser, judgment debtor no. 5. 7. Then about the case of Kalidas in 24 CWN 269 cited on behalf of the respondent. In that case, it has been stated that the decree-holder himself, who is bound to notify before the sale all incumbrances on the property, cannot subsequently set up an incumbrance in his own favour not set up in the execution proceedings. But in this case, the mortgagee was not an auction-purchaser. In that Bench decision, it has been clearly stated that the position of such auction-purchaser is distinguishable from that of a purchaser, who merely purchases with notice of the mortgage. That decision on the point of estoppel is based on the earlier Bench decision of (7) Prasanna v. Srikanta in 17 CWN 137. In the case of Prasanna v. Srikanta, Sir Ashutosh Mookerjee speaking for the Bench has clearly stated that a person, who knew the true state of facts or had the means of acquiring a knowledge of the truth, cannot avail himself of the plea of an estoppel on the ground of misrepresentation. It will appear from the principles of law laid down in the cases in (8) 48 CWN 269 and (9) 49 CWN 580 at page 582 that there can be no estoppel where the petitioner had knowledge of the real state of affairs. 8. It has already been pointed out that the execution case could be started by the decree-holder against the auction purchaser, judgment debtor no. 5. So, after obtaining the pre-emption order in his favour, the present petitioner will not be in a better position. Further, in the aforesaid case of Kalidas in 24 CWN 269 there was an express agreement by the mortgagee. Here, there was none, in view of the principles enunciated by this Court, it is not necessary to consider the effect of the decision in AIR 1935 Lahore 527 cited on behalf of the appellant. Further, in the aforesaid case of Kalidas in 24 CWN 269 there was an express agreement by the mortgagee. Here, there was none, in view of the principles enunciated by this Court, it is not necessary to consider the effect of the decision in AIR 1935 Lahore 527 cited on behalf of the appellant. It seems that it has been rightly contended on behalf of the appellant that in such circumstances, the fact that there was no mention of the incumbrance, i.e., of the grossee mortgage bond in the sale proclamation, was an irregularity and it did not debar the decrees-holder from putting the decree into execution. Since the auction-purchaser had full notice of the mortgage bond, the pre-emptor cannot invoke the principles of estoppel. The decision of the learned appellate court cannot, therefore, be supported. Therefore, find that the present execution case is maintainable. 9. The appeal be allowed. The order appealed against be hereby set aside and that of the learned Munsif restored. The parties will bear their own costs throghout.