RAICHAND GULABCHAND Vs. DATTATRAYA SHANKAR MOTE

JUDGEMENT

(1.) THESE two appeals arise out of connected proceedings. It will be sufficient to state the facts in First Appeal No. 40 of 1960 to understand the nature of the litigation, we will call defendants Nos. 1 to 7 "datars", who were the debtors in the proceedings. Defendant No. 8 was the creditor and defendants Nos. 9 to 13 were also another set of creditors. It appears that Datars were indebted to several persons, amongst whom were defendants Nos. 9 to 13. Defendants Nos. 9 to 13 filed a suit for recovering a sum of Rs. 1,34,000 and interest from Datars. On the 31st of March 1941 a decree was made in their favour, by which a charge was created on 3 sets of properties belonging to Datars. Two properties were situated at Poona, one in Shukrawar Peth and another in Budnawar Peth. The third property was at Kalyan. This decree, creating the charge was registered on the 17th of April 1941. As ill luck would have it, it was only against the Shukrawar Peth property that the charge was mentioned in the indexes of the Registrar. The charges on other properties were not mentioned at all. Even the property cards of City Survey Department and the Municipal records did not contain a reference to the charges on any of these properties. On the of June 1949 Datars created a mortagage in favour of the plaintiff, who is the appellant before us, for a sum of Rs. 1,00,000 on the Budhawar Peth property. Subsequently, on the 13th of September 1949, further mortgage was created on the same property in favour of the plaintiff for a sum of Rs. 50,000. Thereafter, on the 27th of July, 1951, a charge was created by an award in favour of defendant No. 8 the Bank of Maharashtra, Pepma, for a sum of Rs. 59,521-11-0 on the Budhwar Peth property. Subsequently, it appears; a decree was made on the award. It seems that in the meantime the other two properties were sold and realisations to the tune of Rs. 1,15,000 were recovered by defendants Nos. 9 to 13. These defendants Nos. 9 to 13, thereafter, filed a Darkhast for execution of their decree, being Darkhast No. 32 of 1952, and claimed a sum of Rs. 1,57,164 being the balance of the amount due to them and accruing interest out of this property. This property was brought to sale in execution of the decree and was purchased in auction by defendants Nos. 9 to 13, i. e. the decree-holders themselves.

(2.) IN execution of decree of defendants Nos. 9 to 13 notices under Order 21, Rule 66 of the Code of Civil Procedure were issued and the plaintiff appeared in, the Darkhast proceedings and made his claim. The learned Judge rejected the prayer and vacated the notices issued to the mortgagees and charge-holders, i. e. the plaintiff and defendant No. 8. Against this judgment, the plaintiff has filed of an appeal in execution, being the Appeal No. 668 of 1957 before us. He then instituted on the 5th of June 1958 this suit for realisation of the total sum of Rs. 2,18,564 by sale of the mortgaged property. Defendants Nos. 1 to7 are the original mortgagors, defendant No. 8 is the Bank of Maharashtra, the subsequent charge-holder, and defendants Nos. 9 to 13, the original charge-holders, who, by then, had purchased the mortgaged properly.

(3.) THE real contesting defendants are defendants Nos. 9 to 13. They contend that the property is not liable to sale, since they are prior charge-holders and had acquired the property at the Court sale in execution of their Darkhast for enforcement of their charge. Defendant No. 8 is interested in incorporating its claim as subsequent mortgagees in the decree, which may ultimately be passed in favour of the plaintiff. The short and narrow issue, therefore, which arose, before the Court, below was whether defendants Nos. 9 to 13 had priority over the mortgage of the plain-tiff. The learned trial Judge found this issue against the plaintiff and, therefore, did not give the plaintiff the relier in respect of the property. He declared that Rs. 2,18,564 was due under the suit mortgages at the date of the sum and directed defendants Nos. 1 to 7 to pay the same to the plaintiff with future running interest at 4 per cent per annum on Rs. 1,50,000 from the date of the suit tilt realisation together with the costs of the suit. He also gave consequential directions as to costs.