SANSARMAN Vs. RAM DULARI

JUDGEMENT

(1.) This second appeal has been referred to a Bench by Sankar Sarah J., as in his opinion there was a conflict of authority between the Allahabad High Court and the late Chief Courth of Avadh.

(2.) The facts leading to the reference are these: Two persons Nandkishore and Bhagwat Prasad made a posessory mortgage on 16th August 1912 in favour of Shri Krishen in respect of 11 plots measuring 2.54 acres for 15 years. Nandkishore died and Bagwat prasad made a simple mortgage of five plots on 30.7.1924 in favour of Sansarman, the son of the original mortgagee, Shri Krishen for Rs.600 giving credit for the consideration of the previous mortgage. Bhagwat Prasad also died and his window Ram Dulari sold the quity of redemption in a portion of the mortgaged plots to Dabhal and Mohan including certain other property for Rs. 750. (Ex. 2). Rupees 636 were made dehanid Sansarman filed a suit in 1937 on the basis of mortage of 1924 impleading Ram Dulari and her tranferees under B-1. A permilinary decree ofor recovery of Rs.1,249 6-0 by sale of the property was made on 3rd June 1937. On 31st May 1941, Ram Dulari applied for amendment of the decree under the Debt Redemption Act. The decree was amended in August 1941. A year later in August 1942 Sansarman made an application for making the preliminary decree final. Dabhal and Mohan resisted the application on the ground that the mortgage had been paid off by the usufruct of the deed of 1912. The Court of first instance made the decree final and dismissed the objection. The lower appellate Court allowed the appeal and found on accounting that nothing was due to the decree-holder except certain costs which were awarded to him under the preliminary and the final decree. The decree-holder has appealed.

(3.) The only point has been raised before us in whether the sale (Ex. B-1) had the effect of transferring the liability for the repayment of the loan to the transferee within the meading of Section 2(9) U.P. Debt Redemption. Act, and whether on that account the judgement-debtors were deprived of the benefit of the Act. This point is raised in grounds Nos. 1 and 2 of the memorandum of appeal. This question has been the subject-matter of judicial decisions, both in Allahabad and Avadh on a number of occasions and has been authoritatively decided.