GOBIND PRASAD Vs. TEK NARAIN MAHTOON

JUDGEMENT

(1.) The present appeal arises out of a suit brought by the plaintiff to . enforce six mortgage bonds, all covering the same property, and also for redemption of a prior mortgage held by the defendants Nos. 2, 3 and 4, covering only a portion of this property. It appears that the property, the subject of these six mortgages, was a 3 anna 4 dam share of village Satnag appertaining to estate Rampore Teni. This share, on a partition of the village being made by the Collector, was converted into a separate estate in 1903 or 1904. In consequence some of the earlier mortgages describe the property as a 3 anna 4 dam share of village Satnag appertaining to estate Rampore Teni, while those of later dates describe it as 16 annas of Touzi No. 693 The defendant No. 1, the mortgagor, did not dispute the mortgages or that the debts claimed there under were due from him, but he pleaded that the clause relating to compound interest was not enforceable as it was in the nature of a penalty. The defendants Nos. 2 to 4, who are the purchasers of a 1 anna 4 dam. share out of the 3 anna 4 dam share of Mauza Satnag, really contested the suit and they appear to have in their written statement raised every possible objection to the plaintiffs claim, alleging even that the mortgages were collusive and that the mortgagor had no title to the property mortgaged. Both parties went into evidence to support their respective allegations and the Subordinate Judge has dealt with the case in a very careful judgment. In the first instance, he has considered the plea advanced by the defendant No. 1 that compound interest cannot be recovered and has held that that plea has no substance and that, under the terms of the mortgage-deeds, the plaintiff is entitled to recover compound interest. That finding is not disputed in this appeal as the defendant No. 1 has not appeared to contest the decision of the lower Court on that point. The Subordinate Judge has then dealt in detail with the objections taken by the defendants Nos. 2 to 4 and. has decided all the issues raised on these points in favour of the plaintiffs. In this appeal, the findings of the Subordinate Judge are only disputed with reference to his conclusion on issue No. 9. His conclusions on the other issues have not been assailed. The learned Subordinate Judge, however, after deciding all these objections in the plaintiff's favour held that the plaintiff's suit could not succeed on the ground that as the plaintiff had a seventh mortgage over the same property subsequent to the six mortgages on which the suit had been brought, therefore, he was bound to sue on that mortgage in the present suit and that, as he had omitted to do so, the suit must fail. He, accordingly, dismissed the plaintiff's suit but, holding that all the objections raised by the defendants were unsound, he ordered that the plaintiff should only pay one-half the costs in this suit.

(2.) The plaintiff has appealed and the main point in support of the appeal which has been argued is that the lower Court was wrong in the view which it took that the plaintiff's suit was not maintainable by reason of the fact that he had not included in it his claim under the seventh and the latest mortgage. On behalf of the respondents, an objection has been taken to the findings of the Subordinate Judge on the 4 issue that the defendants Nos. 2 to 4 are only entitled to be paid by the plaintiff, in redemption of their mortgage on the 1 anna 4 dam share, the sum of Rs. 1,00.

(3.) The learned Subordinate Judge in arriving at the conclusion that the suit was not maintainable relied on the following cases:--The first is the case of Keshavram Dulavram v. Ranchhod Fakira 30 B. 156 : 7 Bom. L.R. 811. in that case what was laid down was that where a mortgagee holds mortgages on the same property executed by the same person, he cannot maintain a suit to recover the sum due on the later mortgage only by sale of the property subject to the prior mortgage. In the present case, the plaintiff brought the suit on the six prior mortgages to recover the mortgage-debts due on them and at the same time stated that he had a seventh mortgage, but that he had not sued on it in that suit. He did not in his plaint ask for a decree for the sale of the property covered by the six mortgages, subject to the later mortgage, and, in our opinion, he would certainly not have been entitled to ask for any such relief. All that he sought for in the suit was a decree on his six mortgage bonds for the recovery of the debts due under them by sale of the property mortgaged. The case, therefore, of the Bombay High Court on which the Subordinate Judge has relied has, in our opinion, no bearing on the present case. In that case, the mortgagee sought to recover the sum due on the later mortgage by sale of the property subject to the prior mortgages and the learned Judge held that the mortgagee was not entitled to bring the property to sale in satisfaction of the later mortgage and at the same time to retain on the property the mortgage lien under the first mortgage. This is not what the mortgagee in the present suit seeks to do and the case, therefore, in question is no authority for the view which the learned Subordinate Judge has taken.