LAWS(PVC)-1940-8-76

MAHABIR PRASAD Vs. JUGAL KISHORE PRASAD

Decided On August 15, 1940
MAHABIR PRASAD Appellant
V/S
JUGAL KISHORE PRASAD Respondents

JUDGEMENT

(1.) This is a judgment-debtor's appeal from an order of the learned Subordinate Judge of Gaya dismissing his application for setting aside a sale. The appellant judgment-debtor was defendant 8 in a mortgage suit which was based on two mortgages, dated 9 June 1928 and 24 August 1929.

(2.) In the mortgage of 9 June 1928, the mortgagor had mortgaged in favour of the mortgagees two annas share in a village called Daulatia and in the mortgage of 24 August 1929, the mortgagor had mortgaged to the same mortgagee the same two annas share in village Daulatia and a 2 annas 18 dams share of certain property in village Ganowa. Defendant 8, the present appellant, was a subsequent mortgagee of this 2 as. 18 dams share in village Ganowa. The decree-holder brought a suit on these two mortgages and obtained a preliminary decree in his favour. In that decree it is recited that the amount due on the mortgage of 9th June 1928 was Rupees 3360-11-9 and on the mortgage of 24 August 1929, Rs. 1815-0-7. Eventually this decree was made final. In the sale proclamation it was declared that the properties would be sold in satisfaction of the sum of Rupees 5524- 4-4, being the total of the amount due on both these mortgages together with interest and costs up to date.

(3.) It had been directed that the properties comprised in the mortgage of 9th June 1928, should first be sold and that the properties comprised in the second mortgage should only be sold if the amount obtained for the two annas share in Daulatia was insufficient to satisfy the whole amount due. Bids for the property comprised in the mortgage of 9 June 1928, namely two annas share in village Daulatia only amounted to Rs. 3000, whereas the actual amount due under this mortgage at the date of sale is said to have been Rupees 8587-0-9. The share in village Ganowa was then put up for sale and that realized a sum of Rs. 2524-4-4. The purchaser in each case was the decree-holder, and he obtained the two properties for precisely the amount which was due upon both mortgages, namely Rs. 5524-4-4. Application was made to the learned Subordinate Judge to set aside this sale on a number of grounds; but it is unnecessary to consider any of those grounds, because the ground now relied upon by counsel for the decree-holder is an entirely new ground which was never raised in the Court below.