# • 324 SUPREME COURT REPORTS [1904] VOL. BRAHM PARKASH v. MANBIR SINGH AND OTHERS

- **Citation:** [1964] 2 S.C.R. 324
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Case number:** Civil Appeals Nos. i6 and ii of 1961
- **Bench:** B. P. Sinha C. J, J. C. SnAn, l\. RA.JAOOPALA AYY.~NGAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/324-supreme-court-reports-1904-vol-brahm-parkash-v-manbir-singh-and-others-2929
- **Pages:** 13

## Headnote

Jfortyuye-Mars/,,1/liny-1'1ac/"18er also mnr/y11{]e• of other
properly of mortgagnr-lf di,.ntitl<d fo marahalling-Tran-•ftr
nf Properly Act, 1882 Cf of l~S:J) •· 5U.
M5 the owner of properties A, II
and C created several
mortgai:es over them. The appellant was one of the mortgagees of properties A and ll and :>.{G was one of the
mortgagees of property C. Snbseqnently, the mortgagor sold
property l3 to ~[G. One of the mortgagees of propcrtie• A and
B filed a fi;11it for recovery of the 1noney due on tile mortgage.
MG claimed that the mortg;ige debt ~hould first be satisfied
out of property A not sold to hi1n.
'l'hi~ clairn to rnarshalling
Wa!I allowed. The appellant r.ontemkd that under .. 56 or the
1'ran~fcr of Property Act<\ purcha:;cr -..vho \\'a'\ also<\ Juortgagi=e
in respect of any property of the ntortgaJ{Or \Vas not entitled to
marshalling an<l that 111arshalling should nut have been alJo,vcd
in the preseut cC1Se as it \\·as hound to prejudice the appellant.
Held, that ~rG wa> entitled to marshalling.
When s. 56
refer~ to a subseq11ent purch<l.ser it docs not exclude a purchaser v•ho has a mortKagc over so111c other property of the
nlortgagor not connected \vitl1 the proceedi11gs.
Further, it
could not follo\V as a n1atler of la\v that 1narshalling mus.t
nece!.Sarilv prejudice a s11bscq11e11l inortgagcc. 'l'he question or
prejudice' i5 purely one of fact and is intimately connected
with the value of the property ag.dnst which the rnortgagcc is
directed to proceed in the first i11stcutLC.
·rhe appellant was
not r.ntitlcd to the benefit of the last portion of s. 5G as h_e had
not rai.ed any plea as to the value of the property •howing
that manhalling would prejudice him.
Crvn,
APPELLATE
.Juinsmcnox :
Civil
Appeals Nos. i6 and ii of 1961.
Appeals from the judgment and decree dated
May 19, HJ55, of the Punjab High Court in Regular
-
-
-
-
-
-
2 S.C.R.
SUPREME COURT REPORTS
325
First Appeals Nos. 28, 12 and 13 of 1948 respectively.
Gopal Sinyh for R. S. Namlu, for the appellant
(in C. A. No. 76 of 1961).
Aohhru Ra1n and Nuunit Lal, for appellant
No. 1 (in C. A. Nos. 77 and 78 of 1961).
for
Bishan Narain and B. P. Maheshwari,
respondents Nos. 9 and 18 to 20 (in C. A. No• 77
of 1961).
. •. ,.~ I
1963. March 14. The .Judgment of the Court
was delivered by
AYYA.NGA.H .].-These three appeals, whioh
are before us on certificates of fitness granted by the
High Court of Punjab, arise out of two suits for the
recovery of amounts due on mortgages executed by
one Mohinder Singh who was a contractor in Delhi.
Mohinder Singh is now deceased and is now represen·
ted in these proceedings by his widow and son.
Mohinder Singh owned as many as eight properties
in Delhi and over one or other of these he created
successively 24 mortgages between September 1943
and July Hl44 and also executed a sale in respect of
one item of these properties.
The contentions
urged in these appeals arise out of conflicts between
the rights of some of these mortgagees inter se,
between some of them and the purchaser of one of
the properties. It is however unnecessary for the
purpose of deciding these points to set out the details
of every one of these several mortgages or their
history.
Appeals 77 and 78 may first be considered.
The facts necessary to appreciate the sole point raised
by .Mr. Achhru Ram, learned Counsel for the appellant-Jagdish Chand are these ; The property con1963
Bra!t111 Plf.rh1sh
Vf
Mcnbir Si111h
1963
Brahm
Parkas~
"·
,\laiir Sintli
Ayya111ar J.
326 SUPREME COURT REPORTS [1964) VOL.
cerned in the two appeals is plot No. 1, l'usa Road
in Block 34 with a bungalow thereon.
A mortgage
for Rs. 10,000.i- was created over this and certain
other propertie~ (we are, however not concerned with
these other properties) in favour of one Lajwanti by
Mohinder Singh by a deed dated October 19, l!l43.
A few davs later-on November 7, 1943-another
mortgage was executed in her favour for Rs, 16,000/-
under which the property No. I, Pusa Road was
given as securi

## Text

•
324 SUPREME COURT REPORTS [1904] VOL.
BRAHM PARKASH
v.
MANBIR SINGH AND OTHERS
(B. P. SINHA C. J., J. C. SnAn and
l\. RA.JAOOPALA AYY.~NGAR .JJ.)
Jfortyuye-Mars/,,1/liny-1'1ac/"18er also mnr/y11{]e• of other
properly of mortgagnr-lf di,.ntitl<d fo marahalling-Tran-•ftr
nf Properly Act, 1882 Cf of l~S:J) •· 5U.
M5 the owner of properties A, II
and C created several
mortgai:es over them. The appellant was one of the mortgagees of properties A and ll and :>.{G was one of the
mortgagees of property C. Snbseqnently, the mortgagor sold
property l3 to ~[G. One of the mortgagees of propcrtie• A and
B filed a fi;11it for recovery of the 1noney due on tile mortgage.
MG claimed that the mortg;ige debt ~hould first be satisfied
out of property A not sold to hi1n.
'l'hi~ clairn to rnarshalling
Wa!I allowed. The appellant r.ontemkd that under .. 56 or the
1'ran~fcr of Property Act<\ purcha:;cr -..vho \\'a'\ also<\ Juortgagi=e
in respect of any property of the ntortgaJ{Or \Vas not entitled to
marshalling an<l that 111arshalling should nut have been alJo,vcd
in the preseut cC1Se as it \\·as hound to prejudice the appellant.
Held, that ~rG wa> entitled to marshalling.
When s. 56
refer~ to a subseq11ent purch<l.ser it docs not exclude a purchaser v•ho has a mortKagc over so111c other property of the
nlortgagor not connected \vitl1 the proceedi11gs.
Further, it
could not follo\V as a n1atler of la\v that 1narshalling mus.t
nece!.Sarilv prejudice a s11bscq11e11l inortgagcc. 'l'he question or
prejudice' i5 purely one of fact and is intimately connected
with the value of the property ag.dnst which the rnortgagcc is
directed to proceed in the first i11stcutLC.
·rhe appellant was
not r.ntitlcd to the benefit of the last portion of s. 5G as h_e had
not rai.ed any plea as to the value of the property •howing
that manhalling would prejudice him.
Crvn,
APPELLATE
.Juinsmcnox :
Civil
Appeals Nos. i6 and ii of 1961.
Appeals from the judgment and decree dated
May 19, HJ55, of the Punjab High Court in Regular
-
-
-
-
-
-
2 S.C.R.
SUPREME COURT REPORTS
325
First Appeals Nos. 28, 12 and 13 of 1948 respectively.
Gopal Sinyh for R. S. Namlu, for the appellant
(in C. A. No. 76 of 1961).
Aohhru Ra1n and Nuunit Lal, for appellant
No. 1 (in C. A. Nos. 77 and 78 of 1961).
for
Bishan Narain and B. P. Maheshwari,
respondents Nos. 9 and 18 to 20 (in C. A. No• 77
of 1961).
. •. ,.~ I
1963. March 14. The .Judgment of the Court
was delivered by
AYYA.NGA.H .].-These three appeals, whioh
are before us on certificates of fitness granted by the
High Court of Punjab, arise out of two suits for the
recovery of amounts due on mortgages executed by
one Mohinder Singh who was a contractor in Delhi.
Mohinder Singh is now deceased and is now represen·
ted in these proceedings by his widow and son.
Mohinder Singh owned as many as eight properties
in Delhi and over one or other of these he created
successively 24 mortgages between September 1943
and July Hl44 and also executed a sale in respect of
one item of these properties.
The contentions
urged in these appeals arise out of conflicts between
the rights of some of these mortgagees inter se,
between some of them and the purchaser of one of
the properties. It is however unnecessary for the
purpose of deciding these points to set out the details
of every one of these several mortgages or their
history.
Appeals 77 and 78 may first be considered.
The facts necessary to appreciate the sole point raised
by .Mr. Achhru Ram, learned Counsel for the appellant-Jagdish Chand are these ; The property con1963
Bra!t111 Plf.rh1sh
Vf
Mcnbir Si111h
1963
Brahm
Parkas~
"·
,\laiir Sintli
Ayya111ar J.
326 SUPREME COURT REPORTS [1964) VOL.
cerned in the two appeals is plot No. 1, l'usa Road
in Block 34 with a bungalow thereon.
A mortgage
for Rs. 10,000.i- was created over this and certain
other propertie~ (we are, however not concerned with
these other properties) in favour of one Lajwanti by
Mohinder Singh by a deed dated October 19, l!l43.
A few davs later-on November 7, 1943-another
mortgage was executed in her favour for Rs, 16,000/-
under which the property No. I, Pusa Road was
given as security.
Passing over certain intermediate
transactions not material for the purposes of the
present appeals, a mortgage was created in favour of
one Daulatram Narula inter alia on this property on
January 21, 19•14 to secure a sum of Rs. 60,000/-.
Two days later - on .January 23, 1944-the appellant,
Jagdish Chand, lent a sum of Rs. 10,000/- to
Mohinder Singh and had a mortgage executed on
No. I, Pusa Road
Daultram Narula, the mortgagee
under the deed dated January 21, J 944 obtained two
further mortgages over the same property and others
on February 25, l!H4 and March 14, 1944, the first
for Rs. 9,500/- and the second for Rs. 10,000/-. It
ought to be mentioned that the con~ideration for
several of the mortgages referred to earlier was in
part a payment in cash to the mortgagor and in part
repayment in part satisfaction of previous mortgages,
but this circumstance not being of any relevance we
are not setting out the details of the consideration for
the several mortgages. Lastly, and this is the mortgage which is of importance for the point raised in
this appeal, on July 13, 1944, Mohinder Singh
created in favour of Pandit Sham Sunder an usufruc·
tuary mortgage for
Rs. 1,25,000/- out of which
Rs. 84,0UO/-was reserved with the mortgagee for
payment to Daulatram Narula the sum representing
the principal and interest due on his three mortgages.
It is common ground that on the date when the
mortgage was registered Sham Sunder carried out
his obligation
and discharged the mortgages of
Daulatram by paying him Rs. 84,000/-.
-
-
-
-
-
2 S.C.R.
SUPREME COURT REPORTS
327
The amount due to Lajwanti was not paid and
she accordingly brought a suit on June l 4, 1945, in
the Court of the Senior-SubJudge, Delhi for the
recovery of her mortgage money which, after giving
credit for the sums paid to her already by several
subsequent mortgagees, came to Rs. 11,657/li/4. She
impie-aded as party defendants to the suit the several
subsequent mortgagees
including the appellant --
J agdish Chand as well as Daulatram and Sham
Sunder's legal representatives as he himself was dead
by that date. Just like Lajwanti another mortgageeone Mukhamal--in whose favour two mortgages,
one dated February 1, 1944 and another dated
May 12, 1944 for Rs. 10,000/-and Rs. 9,000/- respectively, also
filed a suit for the recovery of
R~. 15,302/- and odd.
As in Lajwanti's suit, the
several subsequent mortgagees including J agdish
Chand, Daulatram and the legal representatives of
Pt. Sham Sunder were also impleaded as defendants
in this suit also.
In these two suits the genuineness of the several
mortgages was not seriouly disputed and the only
point on which contest was centred was as regards
the respective rights of the several mortgagees inter
se.
We are concerned in these two appeals with the
claim· made by the legal representatives of Sham
Sunder that they were entitled by reason of their
discharging the mortgage-debt of Daultram to whom
they had paid Rs. 84,000/- out of the mortgage
amount of Rs. 1,25,000/-to be subrogated to the
rights and priorities of Daulatram under the mortgage dated January 21, 1944 for Rs. 60,000/- as
against the later mortgage of January 23, of Jagdish
Chand even though there was no agreement in
writing under which he stipulated for such a right.
This contention was raised both in the suit by
Lajwanti as well as in Mukhamal 's suit. It was
contended on their behalf that though the Transfer
of Property Act did not in terms apply, yet the
equitable principle underlying its s. 92 viz., the right
Jj63
Brahm Pmkas~
v.
Ma1.hir Singh
AJ.'.}'«ngar J.
1963
brohm Porkruh
v •
. \lanhfr Singh
328
SUPREME COURt REi>ORTS[l964]VOt.
of a secured creditor who had discharged a prior
encumbrancer to be subrogated to the rights and
priorities of the mortgagee who he had redeemd, could
nevertheless be invoked under s. 6 of the. Punjab
Laws Act. The learned trial Judge, however, while
acceding to this in principle, held on the basis of
certain authorities to which he referred that in the
absence of a specific agreement stipulating for subrogation the subsequent mortgagee was not entitled to
such an equity. On this ground the right of the
subrogation claimed by the legal representatives of
Sham Sunder was rejected.
From the rejection of
this claim in the two suits Sham Sunder's representatives preferred two appeals to the High Court and
the learned Judges allowed the appeal holding that
it was not an essential condition for claiming the
right of subrogation that the creditor redeeming the
mortgage should have entered into an express agree·
ment to that effect.
It is from this decision of the
High Court that these
two
appeals have been
preferred.
Mr. Achhru Ram, learned Counsel for the
appellant did not dispute before us the correctness of
the view expressed by the learned judges of the High
Court that in order to entitle a creditor to claim a
right of subrogation it was not necessary that he
should have entered into a written agreement stipu·
lating for such a right
His submission, however,
was on the following lines : Accepting the Law, as
expounded by Sir Richard Couch in Gokuldass
Gopaldass v. Ram Bux Seochand ('), in the following
terms :
"In India the art of conveyancing has been
and is of a very simple character. Their Lordships cannot find that a formal transfer of a
mortgage is ever made, or an intention to keep
it alive ever formally expressed ............ The
obvious question to ask
in the interests of
(1) t188'1) L. R. 111. A. 126, 153-134.
-
-
-
-
-
-
2 s.C.R..
SUPREME COURT REPORTS
329
justice, equity, and good conscience, is, what
was the intention of the party paying off the
charge? He had a right to extinguish it and a
right to keep it alive. What was his intention?
If there is no express evidence of it, what
intention should be ascribed to him?
The
ordinary rule is that a man having a right to
act in either of two ways; shall be assumed to
have acted according to his interest. In the
familiar instance of a tenant for life paying off
a charge upon the inheritance, he is assumed,
in the absence of evidence to the contrary, to
have intended to keep the charge alive. It cannot signify whether the division of interests in
the property is by way of life estate and
remainder, or by way of successive charges.
In each case it may be for the advantage of the
owner of a partial interest to keep on foot a
charge upon the corpus which he has paid."
as laying down the correct test for
determining
whether the right of subrogation could be claimed or
not, Mr. Achhru Ram submitted that the law was
that even where there was no express agreement
stipulating for subrogation, the law would presume
such a right on the ground that the payer intended
to act in a manner most advantageous to him, but
that this was only a rebuttable presumption which
would be negatived on positive proof from the conduct or statements of such a. creditor pointing to a
contrary intention. In other words, that there was
nothing to prevent its being shown that the creditor
paying off the charge did not intend to preserve the
mortgage which he discharged so as to obtain the
priority which the discharged encumbrance enjoyed.
He urged that in the present case, on the terms of the
documents to which Sham Sunder was a party,
such an intention not to keep alive the discharged encumbrance of Daulatram was clearly made
out. In this connection he drew to our attention
1961
Brahm Parka$h
v.
Manbir Singh
Ayya:ngar J.
1:iahm Pc1J. J'h
'·
, \.{ onbir Singh
Ayyan;ar J,
330
SUPREME cotJRt REPOR.ts [1964]VOL
first
the terms of
the mortgage
executed in
favour of Sham Sunder on July 13, 1944, in which
this
Rs. 84,000j·
left
with
the
mortgagee
is referred to as being held by
the latter
in
trust
for
the
payment
of the
previous en·
cumbrancer-Daulatram. Next, he referred us to
the endorsements of discharge on the mortgages
of Daultram which read as if the amount due had
been paid by Sham Sunder on behalf of the mortga·
gor-Mohinder. On this basis the contention was
urged that any
intention to obtain the benefit of
suborgation was clearly negatived.
We <lo not propose to discuss the merits of this
contention, an<l it is not as if it is not capable of
cogent refutation, because we are satisfied that the
appellant should not be permitted to raise such an
argument at this stage.
In both the suits the legal
representatives of Sham Sunder filed written state·
men ts in which they specifically stated that the discharge of the encumbrances of Daulatram was under
circumstances in which they were entitled to claim
the relief of subrogation.
The question regarding
the intention with which a prior encumbrance is
discharged, whether it is with a view to obtain the
priority of the mortgage paid off or not, in circum·
stances like the present would be a question of fact
and would have to be answered on a conspectus of
the entire circumstances of the case. If the appc·
llant was disputing the plea of Sham Sauder's re·
presentatives that the intention· of Sham Sunder in
discharging Daulatram 's mortgages was to retain
the benefit of suborgation, it was for him to have
raised it by proper pleading when an issue would
have been struck and evidence led for an<l against
such a contention.
At the stage of the trial the only
objection raised to the claim for subrogation was
based on the absence of a written agreement which
the appellant contended was a requirement of the
law which had not been complied with. In one
2 S.G.R.
SUPREME COURT REPORTS
331
sense such plea would appear to assume that the intention of the party paying off the mortgage was to
obtain the benefit o! subrogation but th:.il he ha<l
failed to comply with a requirement of the law in
having that intention embodied in a document. This
plea was accepted by the learned trial Judge and the
claim
for subrogation was disallowed but Sham
Sunder's representath·es filed an appeal to the High
Court. Again, at the stage of the appeal the only contention urged before the learned Judge was as regards
this supposed requirement of the law that there
should be a written agreement. When this plea
was rejected it is obvious that on the pleadings the
right to subrogation should be held to be established.
The matter, however, does not stop here, because
even at the stage of appeal to this Court no point was
made that in the instant case the presumption in
favour of a person having acted to his interest and
so entitled to claim subrogation was displaced by
clear evidence of the party's statements or conduct.
Nor can even a trace of such plea be found in the
statement of case filed in these appeals. We do not
therefore consider it proper to permit learned Counsel
to urge any such ground before us.
This was the only point urged in these appeals
which fail and are dismissed with costs--one set payable to the executors of the will of Pt. Sham Sunder.
Civil Appca.l 76 of l!:Jol.
This appeal arises out of the suit by Lajwanti
already referred to.
The appellant is one Brahm
Parkash in whose favour Mohinder Singh executed
a mortgage for Rs. 15,000/ · on May 2, 1944. The
property mortgaged was plot No. 44 in Block 17 A
with the superstructure on it and plot No. 19 in
Block No. £). Brahm Parkash was the twentieth defendant in Lajwanti's suit. Plot No. 14 of Block
No. 13 was sold by Mohinder to one Mukhamal
Gokul Chand by deed dated April 28, 1944. It is
1943
Brahm Parka~fl
v.
Manbir Singh
A.yyanga
J.
I96S
Tlr,,l:m Pa11'.·rz.,!i
v •
. \fanl i• Sin;h
332 SUPREME COURT RF.PORTS [i9G4.j \rot.
the claim of this Mukhamal to marshalling that is
the main subject of controversy in this appeal.
A~
we have stated earlier, Lajwanti's mortgage dated
October 19, 1943, for Rs. 10,000/- comprised of
several properties including plot No. 14 which on
April 28, l!J-14, had been sold to Mukhamal. Now
Mukhamal who had been impleaded as a subsequent
transferee in Lajwanti's suit claimed that he was
entitled to marshalling on the principle to be found
in s. 56 of the Transfer of Property Act which runs
as follows:
"56. If the owner of two or more properties
mortgages them to one person and then sells
one or more of the properties to another person,
the buyer is, in the absence of a contract to the
contrary, entitled to have the mortgage-debt
satisfied out of the property or properties not
sold to him, so far as the same will extend,
but not so as to prejudice the rights of the
mortgagee or persons claiming under him or of
any other person who has for consideration
acquired an interest in any of the properties."
This claim was however disallowed
by the trial
Judge for reasons to which it is not necessary to
,
...
advert.
l\fokhamal Gokul Chand filed an appeal to
•
the High Court in which he made the same -prayer,
The learned .Judges of the
High Court upheld
Mukhamal's contention that he was entitled
to
marshalling and
directed
that Lajwanti should
proceed first against plot 44 and only for the deficiency, if any against plot 14 which Mukhamal had
purchased. It is the correctness of this decision that
is challenged by Brahm Parkash in this appeal.
Mukhamal Gokul Chand has not entered appearance
and the appeal has been heard ex paru.
•
Before
dealing with the correctness of this
direction as regards marshalling it is necessary to
mentioa one further fact.
Mukhamal's appeal to the
-
! l'l.C.R.
SUPRBMB COURT REPORTS
333
High Court-Appeal "2S of 1948 was filed out of time
with a petition for condonation of delay under s. 5 of
the Indian Limitation Act and the learned Judges
condoned the delay and entertained the appeal. The
legality and propriety of this order condoning the
dday is canvassed before us by learned Counsel for
the appellant. The facts relevant for the consideration of this point are briefly as follows : The
prelliminary d!'cree of the trial Judge from which the
appeal No. 28 of 1948 was filed was dated April 28,
194 7.
An application for the grant of certified
cqpies was made on October 16, 1947 and the copies
were ready for delivery on October 28, 1947.
The
appeal, however, was actually filed only on March,
10, 1948-admittedly after the period of limitation
had expired.
The application to the High Court
for condoning this delay was supported by an affidavit by one Amar _Nath.
Befor~ setting out the
contents of this affidavit it must be mentioned that
the disturbed state of the Punjab at the time of the
partition was taken into account by the legislature
and by East Punjab Act lG of 1947 the period from
September 19, 1947,
to November 15, 1947, was
directed to be excluded in computing limitation for
any purpose of the Limitation Act including s. 5,
In the affidavit in support of the application for the
condonation of the delay it was stated that the firm
of Gokul Chand had handed over the papers to their
Munim on or about November I, 1947, for filing an
appeal but the i\1unim who was a Muslim went
away to Pakistan without handing over the certified
copies of the judgment to the parties and that the
copies were received from Pakistan on March 4, 1948,
-a few days before the affidavit was sworn and that
immediately after the receipt of the papers the appeal
was filed at Simla on March 10, 1948.
The learned
Judges in dealing with this application observed :
"In 194 7-48 unprecedented events occurred in
Pelhi with the result th<1t in some c<1ses the
1963
Brahm P1rkash
v.
M1nbir Singh
Ayyangar J.
1963
Brahm Parkarh
v.
/lfdrthfr Singh
334
SUPREME COURT REPORTS [1964JVOL.
whereabouts of close relations were not known
for months.
In the present case not a syllable
is to be found on the record to show that the
affidavit of Amar Nath was untrue in any
particular. That being so, I have no doubt
that
there
was sufficient cause
for
not
filing the appeal
in time.
In these circumstances
I condone the delay in filing
the
appeal-Regular 1st Appeal No. 28 of !!HS."
Learned Counsel for the appellant submitted that
the learned .J udgcs had not required the petitioner
for eondonation to explain each day's delay, thus
departing from
the accepted tests for condona ·
tion under s. 5 of the Limitation Act. We are not,
however, persuaded that the learned Judges were
either unmindful of the principles on which drlay
should be excused or went wrong in the exercise of
the discretion which they undoubtedly possessed and
that, in any event, we do not consider that this is a
fit case in which we shou Id interfere in appeal.
Coming now to the merits of the appeal, learned Counsel strenuously
urged
that the learned
Judges
of the High
Court
had
misapplied
the
principles underlying s. 56 of theTransfcr of
Property Act in directing Lajwanti to proceed first
against the property not sold to Gokul Chand. In
this connection learned Counsel urged two points :
(l) that on a proper construction of s. 56 and the
principle under lying it the benefit of marshalling
could not be claimed by a purchaser who happened
to be a mortgagee in respect of any property belong·
ing to the mortgagor. Learned Counsel pointed out
that Mukha mal Gokul Chand had a mortgage under
a deed dated February fl, 1!144, over certain properties w_ith which the appellant is not concerned.
We cons Ider this submission wholly without substance.
When s. 56 refers to a subsequent purchaser
it does not obviously exclude a purchaser who has
•
•
,-
'
2 S.C.R.
SUPREME COURT REPORTS
335
some mortgage over property with which these proceedings are not concerned.
His mortgage rights
over some other property of the mortgagor is wholly
irrelevant for considering his rights gua purchaser of
one of the properties to which opening words of s. 56
apply. The construction contended for,
in our
opinion, has only to be stated to be rejected.
(2) The other submission of learned Counsel was
that the learned Judges failed to give effect to the last
portion of s. 56 under which marshalling is not to be
permitted so as to prejudice the rights inter alia of the
mortgagees or other persons claiming under him, i.e.,
under the original mortgagor.
Learned Counsel
pointed out that the appellant· having proved his
mortgage and the fact that it was subsisting, the
learned Judges of the High Court ought to have held
that any direction as to marshalling must necessarily
prejudice him. We are unable to agree that this
follows as any matter of law. The question of prejudice is purely one of facts which has to be pleaded a:nd the necessary facts and circumstances
established. It is obvious that the question of prejudice would be intimately connected with the value
oC the property against which the mortgagee is
directed to proceed in the first instance. If even
after paying off such a mortgage there is enough left
for payment over to the subsequent encumbrancer
referred to in the last portion of s. 56 it would be
manifest that there would be no question of prejudice.
If therefore the appellant desired to invoke the benefit of the last portion of s. 56 he should have made
some plea as to the value of the property and shown
how it would prejudice his rights as a subsequent
encumbrancer. He however made no such plea and
no evidence was led as to
the value of the property. Even at the· stage of the appeal in the High
Court the contention that to allow marshalling in
favour of the subsequent purchaser-Mukhamalwould result in prejudice to him was admittedly
1963
Brahm Parkash
v.
Manbfr Singli
Ayyanzar /.
1963
Brahm PerJuah
v .
.
~foobir Sin.t:h
Ayyan.~ar J.
1963
A1arrh 14
336 SUPREME COURT REPORTS [l 964] VOL.
never put forward before the learned Judges.
As
the point is one not of pure law but springs from the
factual inadequacy of the property mortgaged to him
to discharge his debt it is too late for the appellant
to raise such a plea in this Court.
The appeal fails and is dismissed.
A ppe"/s dismi8sed,
DR. RAGHUBIR SHARAN
t•.
THE STATE OF BIHAR
(K. SrrnnA RAO, RAOHUBAR DAYAL and
.J. R. M l'.Dl!OLKAR .J.J.)
Criminol Trial·-Rtvision application to Hiyh Court for
P.:tpunyiny renirzri.·-'j froni jud!1ment of Lou.Jtr Court-J::r.Jent of '
i1Uu·.rc11l }Jo!1,•1:r of !ligh (}ourt-./urisrliciion token to he exerci•edCo1fo of Criminal l'rocedure (Act 1· of l89S), .<. jl;JA.
In a criminal case pending in the court of a Munsif
'.\lagistratc, two accused persom moved a bail application on
the ground of serious illness in jail. The Magistrate called
upon the appellant, ,vho \\'as at that tin1e a Civil Assistant
Surgeon and al~o Superintendent of the Sub-Jail, to submit a
1ncdical repvrl. On the report, the .\fagistrate released the
accused persons on bail but made certain observations against
the appellant as a doctor, which are sought to be expunged.
Against the said order, the medical officer filed a revision
petition in the 1 ligh Court \Vhich \Vas dismis,ed. On appeal by
special !cave: the appellant's main contention \Vas that the High
O>urt should have expunged the remarks which would affect
the appellant's future official career. The question for decision
in this coar1 \Vas whether in a case \vhere the judgment has
become final, that is to say, when no appeal has been preferred
against the judgment by an aggrieved party, the High Court
can expunge any remarks found therein at the instance of a
third party.
Jlei<I, (per Mudholkar and Dayal J.J.), that every High
Court as the I Jighest Court c~ercising criminal jurisdiction in a
•