HRIDAY NARAIN Vs. HARICHARAN TIWARI

JUDGEMENT

(1.) This is an appeal by the defendant 4th party who is aggrieved by the decision of the learned Subordinate Judge of Bhagalpur, dated the 16th February 1944, by which he has decreed the suit of the plaintiffs respondents. The only question for decision is whether the appellant is entitled to claim a lien to the extent of Rs. 2000 on the principle of salvage.

(2.) The facts are these: On 24th May 1929 the ancestor of defendant first party executed a mortgage bond for Rs. 4,363 in favour of the plaintiffs, who had instituted the suit giving rise to this appeal on the 24th April 1942 for enforcement of this mortgage bond -- four properties were given in mortgage out of which we are informed that the 1st, 3rd and 4th properties have already been sold in execution of either a rent decree or a decree obtained by previous mortgagees, so that the plaintiffs seek to recover their dues only from sale of property No. 2. The only contesting defendant out of the second party defendant was defendant No. 4, who contested the suit on the allegation that the mortgage bond in suit was not genuine or for consideration and that it was a farzi document. The learned Subordinate Judge has answered these two issues in favour of the plaintiffs, and these findings were not seriously challenged before us. The evidence in support of the mortgage bond being genuine and for consideration, is overwhelming and also in support of the finding that the bond was not a farzi document. The learned Subordinate Judge's findings on these two issues must, therefore, be affirmed.

(3.) The serious contention advanced, however, was that defendant No. 4 is entitled to salvage lieu to the extent of Rs. 2,000 in these circumstances. It was pleaded that property No. 2 had already been sold in execution of a rent decree obtained by the Banaili Raj on the 4th March 1929. But before this could be confirmed the judgment-debtors, namely, the mortgagors made an application to have the sale set aside; these proceedings, however, were compromised between the judgment-debtors and the Banaili Raj on the decree-holder auction purchaser's agreeing to accept Rs. 2000/- to be paid by the judgment-debtors within certain time, and then the sale would be set aside. The appellant's case is that in order to set aside the sale he advanced Rs. 2000/- to the mortgagors on their executing a deed of conditional sale in favour of the defendant 2nd party on the 14th February 1930. It is, therefore, claimed that to the extent of Rs. 2000 together with interest thereon the appellant should be granted a lien, as the amount Rs. 2000/- had been advanced by him to save property No. 2 to the mortgagors and also to the plaintiff mortgagee of 1929.