TMI Blog1960 (4) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the appellant and passed a preliminary decree for sale. Six months' time was allowed to the appellant to pay the decretal amount, failing which the respondents were at liberty to get a final decree prepared and bring the properties to sale. The appellant went in appeal to the High Court but the appeal was dismissed. Then there was a Letters Patent Appeal, which was also dismissed. The appellant then applied for and was granted special leave by this Court, and that is how the matter has come up before us. 2. The only point for our consideration is whether the liability created under a mortgage is a debt within the meaning of s. 2(6) of the Act. The relevant part of that provision runs as follows:- 'Debt' means any pecuniary liability, whether payable presently or in future, or under a decree or order of civil or revenue court or otherwise, or whether ascertained or to be ascertained, which (a) in the case of a displaced person who has left or been displaced from his place of residence in any area now forming part of West Pakistan, was incurred before he came to reside in any area, now forming part of India; (b)in the case of a displaced person who, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll cover any liability which is of a monetary nature. Now the definition of a mortgage in s. 58 of the Transfer of Property Act, No. 4 of 1882, shows that though it is the transfer of an interest in specific immovable property, the purpose of the transfer is to secure the payment of money advanced or to be advanced by way of loan or to secure an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. The money advanced by way of loan, for example, which is secured by a mortgage, obviously creates a pecuniary liability. It is true that a mortgage in addition to creating the pecuniary liability also transfers interest in the specific immovable property to secure that liability ; none the less the loan or debt to secure which the mortgage is created will remain a pecuniary liability of the person creating the mortgage. Therefore a mortgage debt would create a pecuniary liability upon the mortgagor and would be covered by the definition of the word debt in s. 2(6). We may in this connection refer to the Displaced Persons (Institution of Suits) Act, No. XLVII of 1948, which has been practically repealed by the Act. In that law, suits r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property in Pakistan on which the debt was charged. The special provision there-,. fore in sub-cl. (b) of s. 2(6) would not in these circumstances cut down the plain meaning of the words used in sub-cl. (c) or restrict the wide words pecuniary liability to liability other than that secured by a mortgage. Incidentally we may mention that subcl. (b) itself shows that pecuniary liability includes a mortgage debt, for it shows that any liability which was incurred on the security of any immovable property situate in West Pakistan would be a debt within the meaning of s. 2 (6) and therefore a pecuniary liability. 5. It is next urged that when the legislature excepted the property in India which was encumbered from being dealt with under sub-el. (b) so far as displaced debtors were concerned, there is no reason why it should allow the displaced creditors to proceed under the Act with respect to mortgage debts. This argument, however, overlooks the provision in sub-cl. (a) under which a displaced debtor can take the benefit of the Act, once it is held that the words pecuniary liability also include mortgage debt. As we have said before sub-cl. (b) was dealing with a special s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the displaced debtor. Similarly under s. 14 (2) a tribunal can pass such decree in relation to an application under s. 13 as it thinks fit. These decrees are executable under s. 28 of the Act. Therefore even when the debt is a mortgage debt there is provision in the Act for enforcement of that debt, though of course this provision is different from the provision contained in s. 16, which was dealing with the special situation of properties under ,mortgage situate in West Pakistan. 11. We may also refer to s. 3 of the Act which lays down that the provisions of the Act and of the Rules and Orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The effect of this overriding provision is to make a suit like the present maintainable in spite of the provisions applying to such suits in other laws. 12. The last contention on behalf of the appellant is that if s. 2 (6) (c) empowers a displaced creditor to make an application under s. 13 even with respect to a mortgage debt, there will be hardship to prior mortgagees or subsequent mortgagees inasmuch as these persons cannot be dealt with under ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
