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Dirgaj Singh And Ors. vs Debi Singh And Anr.

High Court Of Judicature at Allahabad|14 November, 1877


1. The pleas sot out in the memorandum of appeal show valid grounds of objection to the decree of the lower Appellate Court. The appellants' deed of conditional sale was executed in 1864, the respondents' deed of mortgage in 1870. Now the mortgagor could only convey to the respondent such a title as he himself had, namely, a title subject to the conditional sale and the legal consequences of the sale. Consequently the appellants were entitled to take proceedings for foreclosure without discharging the alleged mortgage-debt due to the respondent. Such proceedings have been taken, but the respondent now alleges that ho had no notice of them. If the mortgage made to the respondent was merely colourable and the original mortgagor remained solely interested in the property subject of course to the conditional sale, this notice to the respondent was not necessary, but if the mortgage made to the respondent did in fact create an interest in the property in his favour he was entitled to notice, and it must be ascertained whether he received such notice. The lower Appellate Court must try the following issues: Had the respondent at the time the foreclosure proceedings were commenced a bond fide interest in the property? If so, was notice of foreclosure served on him? The lower Appellate Court will return its finding on these issues, when ten days will be allowed for objections.
2. The Subordinate Judge determined on these issues that at the time the foreclosure proceedings commenced Dobi Singh was in possession of the shares as mortgagee, and was still in possession as such, and that no notice of foreclosure was served on him.
3. On the return of these findings, the High Court delivered the following Case Note:
Conditional Sale - Mortgage--Foreclosure--Regulation XVIII of 1806, Section 8.
4. The facts found by the Court below are no longer disputed, and we accept the findings. We entirely concur in the more recent rulings see 3 W.R. 230, per Phear, J., so 6 W.R. 230 that the term mortgagor's "legal representative" used in the Regulation (XVII of 1806) was intended to apply to all or any persons who at the date of the notice possess a title to the equity of redemption whether absolute or defeasible under the mortgage. The respondents were as mortgagees entitled to notice, and the foreclosure proceedings as against them are invalid. They were entitled to have the opportunity of coming in to redeem the mortgage held by the appellants so as to preserve their own security, and the issue of notice to them was indispensable to bar them by foreclosure. The appeal is dismissed with costs.
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Dirgaj Singh And Ors. vs Debi Singh And Anr.


High Court Of Judicature at Allahabad

14 November, 1877
  • R Stuart
  • Turner