PANDURANG GANPATRAO WELEKAR Vs. NURUMIYA SERUMIYA

JUDGEMENT

(1.) THIS is an appeal at the instance of the plaintiffs in a mortgage suit. Respondents Nos. 1 and 2, who are the mortgagors, have not put in appearance. Respondent No. 3 is the then State of Madhya Pradesh, but it is now not in dispute that the liability is that of the State of Bombay under the provisions of Section 91 of the States Reorganization Act.

(2.) THE plaintiffs sued upon a mortgage executed on May 10, 1944, by respondents Nos. 1 and 2. The mortgage was for a consideration of Rs. 4,000, repayable in four yearly instalments of Rs. 1,000 each. The mortgage stipulated for interest at 1 per cent, per month, compound. The property which was comprised in the mortgage consisted of three fields, khasra No. 28, area 3.59 acres and khasra No. 41, area 2.52 acres, of mouza Poth Budhwar, tahsil Katol, district Nagpur, and khasra No. 313, area 5.12 acres of mouza Katol, tahsil Katol, district Nagpur.

(3.) THE principal dispute in this appeal is not between the appellants -mortgagees and the original mortgagors but between the mortgagees and respondent No. 3, the State, and that dispute arises in the following manner. After the mortgage dated May 10, 1944, was executed, the mortgagors borrowed a loan from the Government under the provisions of the Agriculturists' -Loans Act, 1884. It may here be mentioned that the original Act did not contain the present Section 5 -A. That section was added by the C.P. and Berar Agriculturists' Loans (Amendment) Act, 1947 (XXXIV of 1947). It was under the Agriculturists' Loans Act as amended by the 0. P. Act of 1947 that the mortgagors borrowed their loan which was for a sum of Rs. 4,350. The date of the order granting the loan is not stated in the pleadings but the actual loan was advanced to the mortgagors by the State Government on May 1, 1951. For the repayment of this loan, the mortgagors had mortgaged with the State khasra Nos. 40 and 41 of mouza Peth Budhwar. Of these two khasra numbers, khasra No. 41, as we have shown above, was already mortgaged to the plaintiffs -appellants, and, therefore, the State Government was impleaded in the suit, since they were subsequent mortgagees of part of the property mortgaged with the plaintiffs.