GOVINDA MOHAPATRA Vs. T VENKATAKRISHNAYYA

JUDGEMENT

(1.) This is defendant 8's appeal in a suit for enforcement of a mortgage dated 27th July 1926 for a consideration of Rs. 12,000 executed by defendants 1 and 2 and their father late Narain Gantayat. The aforesaid mortgage was executed in full discharge of a prior mortgage dated 16th December 1911 for a consideration of Rs. 8000. The latter consideration was made up of cash advances from time to time under promotes and the interests that accrued due thereon. It is undisputed that out of the consideration of Rs. 12,000, Rs. 6000 represented interest accruing due on the pronotes and the prior mortgage bond, the balance being the amounts advanced in cash. Defendants 1 and 2 are the primary mortgagors. Defendants 3, 4 and 5 are the sons of defendant 1. Defendants 6 and 7 are sons of defendant 2. Defendant 8, the present appellant is a, purchaser of Schedules B-1 and B-2 properties subject to the mortgage. Defendants 9 to 12 are also subsequent purchasers of certain minor items of mortgage properties. Defendants 18 and 14 are two eosharers of defendants 1 and 2 being in possession of certain items of the mortgage properties who set up a paramount title. The mortgagor defendants have subsisting interest in and are in possession of a substantial portion of the mortgage properties not affected by the subsequent purchases of defendants 8 to 12.

(2.) The plaintiff claimed recovery of rupees 22,514 as mortgage money, either from all the defendants or in the alternative from defendant 8 alone particularly on the ground that his auction purchase, to be set out in greater detail, presently, was "subject to the mortgage".

(3.) None of the defendants resisted the suit by way of attacking either the validity or the execution of the mortgage. The main defence was that the plaintiff having been paid Rs. 13,000 was not entitled to recover anything as he was not entitled to more than double the amount actually advanced. Other minor defences have lost their significance as they have not been pressed before us having been set at rest by the decree under appeal. The plaintiff's suit has been dismissed against all but decreed in full against defendant 8.