RAMA CHARAN Vs. RAGHUBIR SARAN

JUDGEMENT

(1.) This is a second appeal which raises a question which when properly understood, is not, to my mind, one of great difficulty. The suit is a suit by a mortgagee to enforce his mortgage by sale Defendant 1, Govind Prasad, is the mortgagor. Defendants 2 and 3, Bankey Lal and Mt. Ram Mukho, are mortgagees under the mortgage dated 18 August 1923 and are joined as defendants to the suit upon the footing of this mortgage being a puisne mortgage to that of the plaintiff. Defendant 4, Ram Charan, is also joined as a defendant to the suit upon the footing of his being also a puisne mortgagee under a mortgage dated 20th April 1923. It is with the priority of this mortgage dated 20 April 1923 that this appeal is concerned. The whole contest in the Courts below and in this appeal has been whether Ram Charan in respect of this mortgage is entitled to priority over the plaintiff's mortgage or not. Finally, the original mortgagee, Ratan Lal, who has transferred his mortgage to the plaintiff is made a party. I do not quite understand why he has been made a party but, for whatever reason it may have been, he is to be found as defendant 5 to the suit.

(2.) On 21 January 1923 Govind Prasad executed a mortgage over the property in question to Ratan Lal to secure a principal sum of Rs. 400 and interest. This is the mortgage in dispute. On 20 April 1923 Govind Prasad executed a second mortgage in favour of defendant 4 that is to say, the present appellant to secure a principal sum of Rs. 225 and interest. On 5 July 1923 Govind Prasad executed a third mortgage in favour of Ratan Lal to secure a principal sum of Rs. 1700 and interest and, finally, on 18 August 1923 he executed a fourth mortgage in favour of Bankey Lal and defendant 3 Mt. Ram Mukho. Incidentally, Bankey Lal has died during the pendency of these proceedings. Now, it is necessary for me to explain in somewhat greater detail how the mortgage of 5 July 1923 came to be executed. The mortgage of 21 January 1923 is the one which the plaintiff is endeavouring to enforce in this suit. It is quite a simple mortgage and no comment upon it is necessary. It is, as I have already said, to secure the principal sum of Rs. 400 with interest. The mortgage of 20 April 1923 which is the mortgage set up in these proceedings by Ram Charan as being paramount to the plaintiff's mortgage, is also quite a simple document securing the principal sum of Rs. 225 and interest. When we come, however, to the mortgage of 5 July 1923, it is necessary to go into it at rather greater length. By this document the mortgagor Govind Prasad recited that its purpose was: In order to pay up the debts described below and to meet household expenses, I have borrowed Rs. 1700...from Lala Ratan Lal...with interest at the rate 1/8 per cent, per month.

(3.) So the purpose of the arrangement which gave rise to the mortgage of 5th July 1923 was in order to enable the mortgagor to pay up his debts. There are then set out those debts of the mortgagor which it is the purpose of this fresh mortgage to "pay up." First come two items a small sum of Rs. 50 due to Ram Charan and then the sum due to that gentleman upon the mortgage of 20 April 1923, which with interest at that time amounted to the sum of Rupees 239-1-0. These two sums together came to Rs. 297-1-0 due to Ram Charan and this is what the mortgagor says about it: The total amount of Rs. S297-1-O"due under both the documents" one of which is the mortgage of 20 April 1923 "have been left by me with the creditor" that is with Ratan Lal for payment to Lala Ram Charan above named.