GUR NARAIN Vs. SHADI LAL

JUDGEMENT

(1.) This appeal arises out of a suit brought to enforce a mortgage, dated the 25th of June, 1889. The defendants 8--16 held a mortgage, dated the 14th of April, 1888. The plaintiff, however, stated that when the mortgage of the 25th of June, 1889, was executed, two prior mortgages, one dated the 26th of June, 1886, and the other, dated the 28th of June, 1887, were paid off, and he accordingly claimed that to the extent of these mortgages, which were paid off, he had priority over the defendants 8-16, notwithstanding that their mortgage was prior in date.

(2.) The lower court decided in favour of the defendants 8-16 and held that the plaintiff had no priority.

(3.) Two questions have been argued in the present appeal first, the question whether or not the plaintiff had in fact priority over the defendants 8-16; and secondly, assuming that he had such priority, whether he could enforce it in a suit instituted by himself as plaintiff.