DURGA DEVI Vs. PARMESHWARI DASS AND OTHERS

JUDGEMENT

(1.) In order to correctly appreciate the points adopted by the learned counsel for the parties in this case, few facts of this case may be mentioned.

(2.) Kalu Mal was the original owner of the mortgaged property. He died on the 23rd of January, 1937. He was survived by two sons, Gokal Chand and Parmeshwari Dass and a widow Smt. Kalm Devi. The property in question was mortgaged with Smt. Soma Vati for a sum of Rs. 4,000/-. Smt. Soma Vati brought a suit for the recovery of the mortgage-amount by way of sale of the mortgaged property and the said suit was decreed on 28th July, 1953. In execution of the said decree, 2/3rd share of the property in question was ordered to be sold but Gokal Chand deposited a sum of Rs. 4,000/- in the Court for the satisfaction of the decree. Since Soma Vati failed to implead Smt. Kalm Devi as a party in the execution application, therefore, the Courts came to the conclusion that only 2/3rd of the property has to be auctioned and Soma Vati could not realise the mortgage money to the extent of 1/3rd. Soma Vati withdrew a sum of Rs. 3,100/- on 13th April, 1959 and her decree stood satisfied. The remaining sum of Rs. 900/- was refunded to Gokal Chand on 27th April, 1959.

(3.) Parmeshwari Dass further mortgaged his share in the property to Smt. Durga Devi for a sum of Rs. 2,700/- for which a suit was filed by Smt. Durga Devi against Parmeshwari Dass, Gokal Chand and Soma Vati for the recovery of the mortgage money by way of the sale of the property in question. Her suit was decreed. In the execution proceedings, Gokal Chand raised the plea that he had paid a sum of Rs. 3,100/- by way of extinction of the mortgage amount to Soma Vati in satisfaction of the decree and there was a charge on the property to the extent of half of that amount. Therefore, his plea was that he stands subrogated to the rights of the mortgagee Soma Vati. The following three issues were framed :-