HAJI MUZAHIR ALI Vs. LACHMAN PRASAD

JUDGEMENT

(1.) THIS is a plaintiff's appeal against the judgment of the District Judge of Barabanki who allowed the appeal instituted by the defendants against the decree of the Munsif of Barabanki in a suit for possession.

(2.) IN order to appreciate the controversy in this case, a brief reference to facts may be made at the outset. One Irshad Husain made a simple mortgage of his property on 10-7-1923, in favour of defendants 1 and 2. He subsequently made a usufructuary mortgage of the property in favour of the appellant on 13-1-1928, but this is not very relevant for the purposes of this appeal. The defendants 1 and 2, who were the simple mortgagees, obtained a decree on the basis of their mortgage dated 10-7-1923 against the mortgagor but in the suit, however, they failed to implead the subsequent usufructuary mortgagee, who is the appellant in the present appeal. After obtaining the decree on the basis of the prior mortgage dated 10-7-1923, defendants 1 and 2 put it into execution against the mortgagor and this execution was transferred to the Collector. The Collector granted a self-liquidating mortgage for 20 years in respect of the property under section 17 of the Debt Redemption Act, and in execution of this order the defendants 1 and 2 on 21-9-1945, obtained actual possession of the plots which were in the possession of the appellant. The appellant filed an objection under Order 21, Rule 100, C. P. C. but this objection was dismissed and he was ordered to seek his remedy in the proper forum. He then instituted the suit which has given rise to this appeal on I7-10-1946.

(3.) DEFENDANTS 1 and 2 contested the suit and contended that they were entitled to use their earlier mortgage as a shield in defence of the suit for possession although they did not implead the plaintiff, who was the subsequent transferee in the suit brought by them on the basis of their mortgage. It was further contended on their behalf that the plaintiff could not obtain possession of the property except on payment of the amount due to defendants 1 and 2 under the mortgage held by them.