Badri Prasad vs Raj Kunwar

Stuart, J.—This appeal arises out of a suit for a declaration brought by a vendee of property at a sale in execution of a decree that the property in question was not covered by a certain mortgage. The Courts below have found that the mortgage in question did not affect that property and that the property could not be and has not been transferred by a sale in execution of a decree obtained upon that mortgage. The appeal questions that decision. It appears to me that such a point cannot be raised in second appeal, for the plea challenges a question of fact. It challenges the decision as to the meaning of the words used in the mortgage describing the property transferred. It does not challenge the legal effect of the words. I need only refer to the decision of Lindley, L.J., in Chatenay v. Brazilian Submarine Telegraph Co. (1891) I.Q.B. 79 : 60 L.J Q.B. 2 95 : 63 L.T. 739 : 39 W.R. 65 : "The expression ''construction,'' as applied to a document, at all events as used by English lawyers, includes two things: first, the meaning of the words; and; secondly, their legal effect, or the effect which is to be given to them. The meaning of, the words I take to be a question of fact in all cases, whether we are dealing with a poem or a legal document. The effect of the word sis a question of law."

I, therefore, consider that, on the findings of the Courts below, the appeal must fail. I dismiss it with costs, which include fees on the higher scale.