SURAJ NARAIN CHAUDHARY Vs. MAHARAJADHIRAJA KUMAR BISHESHWAR SINGH

JUDGEMENT

(1.) This is an appeal by defendant 1 against a decision of the learned Additional Subordinate Judge of Darbhanga dated 7 August 1935 by which he decreed the suit of the plaintiff, respondent 1, which was instituted for enforcing four mortgage bonds executed by the appellant on various dates in favour of respondent 2, the assignor of the plaintiff. The principal question for determination is the extent to which the first mortgage bond dated 14 August 1925 can be enforced. The facts necessary for determination of the controversy between the parties may be stated as follows. On 14 August 1925 the appellant executed a mortgage bond (Ex. 5) for Rupees 30,000 in favour of Apurba Babu, defendant 2 in the action, stipulating to pay interest at 12 per cent, per annum, the due date of payment was 14 August 1926.

(2.) The properties mortgaged in this bond consisted among other properties of village Kasraur, tauzi No. 16. On 7 February 1927 the appellant executed another mortgage bond to secure a sum of Rs. 12,000 in favour of the same mortgagee by giving in hypothecation the same properties as were covered by the bond of 1925. On 25 August 1929 the appellant executed a third mortgage bond in favour of the same mortgagee to secure a sum of Rs. 10,000 and lastly on 15th September 1929, the appellant executed a fourth mortgage bond in favour of defendant 2 to secure an advance of Rs. 15,000 the properties mortgaged being the same in all these four bonds in suits the rate of interest being also the same.

(3.) In the year 1930 Mt. Sarosati Bahuria, defendant 3, was executing her money decree against the mortgagor; she assigned four annas in this decree to the plaintiff on 4 August 1930. On 12 September of the same year the plaintiff applied to be added as a co-decree-holder in the execution proceedings. In his petition, Ex. 3(E) at p. 111, he stated that he was the purchaser of the four annas share of the decree passed in favour of Mt. Sarosati Bahuria against Suraj Narain Choudhuri, judgment debtor, under the deed of assignment executed by Mt. Sarosati Bahuria on 4 August 1930, that the said decree was under execution in case No. 160 of 1930 and prayed that he should be brought on the record as one of the decree-holders.