SHIVAJEE PRASAD SAHU Vs. MAHANTH DARSAN DAS

JUDGEMENT

(1.) This appeal is by one of the defendants in a mortgage suit. The appellant and respondents 2 to 4 executed a usufructuary mortgage bond in favour of plaintiff-respondent No. 1 on the 19th June, 1942 for Rs. 20,000/- bearing interest at the rate of eight annas per cent per mensem, and in lieu of interest they put the mortgagee in possession of a house situated in the town of Muzaffar-pur which they hypothecated as security for the loan. Each of the four mortgagors had one-fourth share in this property; and it was stipulated in the bond that even one of the mortgagors would be entitled to get his share in the house released on payment of his quota of the mortgage money, that is, Rs. 5,000/-. The due date of payment of the mortgage dues was the 3Oth Baisakh 1352 Fas'li, which expired long before the institution of the suit. The mortgagors took a lease back of the house for three years from the 19th Asarh 1349 Fasli, corresponding to the 17th July, 1942, A. D. and a Keraiyanama was executed by them on the 24th September 1942. The rent payable was Rs. 100/- per month, Rs. 25/- being the quota of each of the mortgagors. Even after the expiry of the term of the lease, the defendants continued to occupy the house and paid rent to the plaintiff-respondent at the stipulated rate. Three of the mortgagors, namely, defendants 1, 3 and 4, who are respondents 2 to 4 paid off their quotas of the mortgage money as well as of the rent; and thereafter only defendant No. 2, who is the appellant, has been holding over his share in the house, as he has not yet paid his quota of the mortgage dues. A suit for arrears of rent from April 1953, to August 1954 was instituted against the appellant in the first Court of the Munsif at Muzaffarpur, and it was pending on the date the present suit was filed. The rent had not been paid by him even thereafter and in the present suit rent at the rate of Rs. 25/- per month from September 1954 to February 1955 with interest at one per cent, per month has been claimed, the stipulated rate of interest payable on the rent being two annas per rupee per month. A further relief was sought for recovery of the unpaid balance of the mortgage money on the ground that non-payment of rent amounted to dispossession of the mortgagee, by sale of the entire mortgaged property in view of the stipulation in the bond that, for any outstanding balance of the mortgage dues, the entire mortgage property would remain mortgaged to the mortgagee.

(2.) Each of the defendants filed a separate written statement; but their defence was substantially the same. It was alleged that the shares of the defendants 1, 3 and 4 in the house could not be held liable for the dues against defendant No. 2, the appellant. Another defence was that the plaintiff could not sue for the mortgage money, inasmuch as non-payment of arrears of rent does not amount to dispossession. The last plea taken was that the claim for the mortgage money was barred by the provisions of Order 2 Rule 2 of the Civil Procedure Code, because it was not included in the previous suit for arrears of rent.

(3.) The learned Subordinate Judge dismissed the suit against defendants 1, 3 and 4 and granted a decree for money in respect of the mortgage clues and the arrears of rent against the appellant alone. Though he found that according to the stipulation in the mortgage bond, the plaintiff was entitled to enforce the charge against the entire mortgaged property for realisation of the balance mortgage money, a mortgage decree for sale could not be passed inasmuch as there was no such stipulation.