BARENDRA NATH MITTER Vs. MARTIN AND CO

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Buck-land on an application for the distribution of the surplus sale-proceeds in a mortgage suit. The facts material for the determination of the questions raised before us are not in dispute and may be briefly recited.

(2.) On the 14th May 1909 Mallik executed in favour of the Mitters a mortgage of immoveable property situated partly within and partly beyond the local limits of the ordinary original civil jurisdiction of this Court On the 1st September 1910 the Mitters instituted a suit to enforce their security, The preliminary decree was made on the 28th April 1911 and was followed by the final decree on the 12th July 1912. The sale was held in due course, on the 23rd November 1918. When the amount due on the mortgage in suit had been ascertained on the 27th August 1919, it was found that a considerable surplus would be left after satisfaction of the claim of the mortgagees. Meanwhile, after the preliminary decree but before the final decree in the mortgage suit had been made, Martin & Co. on the 2nd June 1911 obtained a decree against Mallik for a sum of Rs. 80,289 5 9, and on the 25th August 1911 attached the mortgaged properties in execution of their money decree.

(3.) Some time afterwards, during the pendency of the mortgage suit, after the final decree therein but before the sale in execution, Mallik, on the 21st April 1914, executed another mortgage in favour of one of the Mitters. The mortgagee instituted a suit on the 1st November 1915 to enforce this security. The preliminary decree was made on the 4th February 1916, and was followed by the final decree on the 4th July 1917.