RADHA KRISHNA SWAMI Vs. PARSHOTTAM DAS

JUDGEMENT

(1.) THIS is a second appeal from a decree of District Judge of Sitapur in a mortgage suit. Har Bux singh owned the entire mahal Lalta Singh in village Bhilawan. In 1918, ho executed a mortgage ex. El, in favour of Sheo Dayal and Sheo Sagar for Rs. 2300. In 1921, he executed another mortgage, EX. B17, in favour of Mahant Basudeo Gir, defendant 2, for us. 16000. On 22/ 24-3-1922, he executed one more mortgage, EX. 3, in favour of Sheo Darshan Singh, defendant l, and Jagannath Singh, defendant 5, for Rs. 4000. This mortgage was for the entire mahal Lalta singh. One Raghubar Singh owned zamindari property in village Tikara. In 1920, he mortgaged it with Sheo Darshan Singh and Jagannath Singh. Thus Sheo Darshan Singh and Jagannatb Singh were mortgagees of two different properties. The share of each was one-half in the mortgagee rights under each mortgage. Jagannath Singh has been paid off his dues and we have nothing to do with his share in the mortgagee right in this dispute. Sheo Darshan Singh, the other mortgagee, on 2-9-1927 executed a sub-mortgage, EX. l, in respect of his one-half shares in the two mortgagee rights in favour of the plaintiff Purshottam Dass for BS. 3300. On 17-8-1928 Har bux Singh sold mahal Lalta Singh to Mahant Basudeo Gir for RS. 85000. Ex. 2 is the sale-deed. Har Bux Singh left with Basudeo Gir Rs. 4755 odd for the payment to Sheo Dayal and Sheo sagar in discharge of his liability under the mortgage of 1918, Rs. 23169 odd in discharge of his liability to him under the mortgage of 1921, Rs. 4875 for payment to Sheo Darshan Singh and jagannath Singh in discharge of his liability under the mortgage of 1922 and Rs. 1800 for payment to one more creditor of his. Thus he left Rs. 34600 with Basudeo Gir for payment to his creditors including Basudeo Gir himself and took cash of only Rs. 400. The liability of Har Bux singh to Basudeo Gir under the mortgage of 1921 was automatically discharged when Rs. 23169 odd were left with Basudeo Gir. Basudeo Gir took some time to pay off the mortgage of 1918. He paid it off in instalments. He paid Rs. 135 on 13-12-1929, Rs. 1000 on 1-5-1931 and Rs. 4918 on 29-2-1932. Thus he paid in all RS. 6053 and obtained receipt EX. B2 on 29-2-1932. He had to pay more because interest had accumulated between 17-8-1928 and 29-2-1932.

(2.) THE suit from which this appeal arises was instituted by Purshottam Das, the sub-mortgagee to recover the money due to him under the sub-mortgage of 1927. He sought a decree for sale of mahal Lalta Singh. He impleaded' as defendants to the suit not only his own mortgagor, Sheo darshan Singh, but also Jagannath Singh, Jagannath Singh's successors-in-interest, and the sons of Har Bux Singh and Raghubar Singh who had died. Sheo Darshan Singh had been adjudged insolvent and the official receiver, who had the custody of his property, was also impleaded as defendant.

(3.) THE suit was contested by Basudeo Gir, Sheo Darshan Singh and a son of Raghubar Singh. The main contest was by Basudeo Gir who alone filed this appeal and is now represented before us by Shri Radha Krishna Swami Asthapith Mandir in village Bajrakha. The contesting defendants did not dispute the facts mentioned above. Mahant Basudeo Gir pleaded that he and shri Badha Krishna Ji are agriculturists, that he is subrogated to the rights of Sheo Dayal and sheo Sagar under the mortgage of 1918 on account of his discharging that mortgage, that he has a charge or lien over mahal Lalta Singh for Rs. 23169 on account of his having satisfied the mortgage of 1921, that even if mahal Lalta Singh was liable to be sold in enforcement of the sub-mortgage of 1927, the sale should be subject to his rights on account of the subrogation and the charge, that the suit was barred by time and that the plaintiff was not entitled to interest and costs on account of his failure to comply with the provisions of Section 32, Agriculturists' Relief act. Sheo Darshan Singh also pleaded that the plaintiff was not entitled to interest and costs on account of his non-compliance with the provisions of Section 32, Agriculturists' Relief Act.