ABDUL GAFOOR Vs. SAGUN CHOUDHARY

JUDGEMENT

(1.) The suit out of which this :second appeal arises was a suit to enforce a simple mortgage bond dated 18-8-1934 which had been executed by the defts. first party in favour of the deft, third party & which was later assigned by the deft, third party to the. plff. The properties mortgaged under this bond are seven annas & odd share in a particular tauzi & three bighas of kast land. The deft, second party was the prior mortgagee of four annas share out of this tauzi & of one bigha of kasht land. He had instituted a suit on the foot of his mortgage, & in execution of his decree purchased the mortgaged property himself. To that suit the subsequent mortgagee was not made a party & on 2-2-1939 the deft, second party as the auction purchaser was given possession over the property sold in execution of his decree. The present suit was instituted by the plff. on 2-7-1943, & the plff's contention in this suit is that he is entitled to redeem the mortgage of the deft, second party & after redemption to put the properties to sale. The suit was contested by the deft, second party whose contention, as appears from the judgment of the trial Court, was that the mortgage bond propounded by the plff., was not a genuine document & that if it be genuine he was entitled to redeem the plff.

(2.) The Court of first instance, the Munsif of Darbhanga, held that the deft, second party had a right to redeem the subsequent mortgage of the plff. & he ordered that the plff. would at first put to sale that portion of the mortgaged property which was outside the mortgage of the deft, second party & that if the sale proceeds of that property were not sufficient to satisfy his decree, he would, after depositing the amount payable to the deft. second party "under this mortgage & purchase", put the remaining property to sale, & that only in case the deft, second party as the purchaser of the equity of redemption does not redeem him.

(3.) An appeal was preferred by the plff, against this decision of the learned Munsif, & it was directed only against this decision of the learned Munsif, & it was directed only against the order of the learned Munsif allowing redemption by the deft, second party. The appeal was allowed in part by the fourth Additional Subordinate Judge of Darbhanga, who set aside that portion of the order of the learned Munsif by which the deft, second party had been given the right to redeem the plff. The order portion of the learned Subordinate Judge shows that the defts. first party alone were directed to pay off the decretal amount within three months from the date of his order failing which the plff. could sell such portion of the mortgaged property as could satisfy his mortgage decree.