KANHAI LAL Vs. HULAS SINGH

JUDGEMENT

(1.) This was a suit by the appellants upon a mortgage made in their favour by one Ganga Ram Singh, on March the 24tb, 1890. The principal sum secured was Rs. 600, and the mortgagor agreed to pay compound interest with yearly rests at the rate of 2 per cent, per mensem. The appellants in their plaint say that there is due to them Rs. 600 on account of principal and Rs. 402 on account of interest, but they claim only Rs. 10,500. The first respondent, Hulas Singh, resisted the suit on the ground that there was no consideration for the mortgage and en the ground that the mortgagor was incapable of understanding the transaction, and that the interest was penal and excessive and should not be allowed. The respondents Nos. 2 to 7 are the sons of Gauri Sahai, who purchased the mortgaged property in. execution of a decree obtained by him against the mortgagor upon an unregistered mortgage of May 17th, 1888. These respondents pleaded, and it is now admitted, that the mortgagor, on March 2nd, 1690, that is to say, a few weeks before the mortgage now in suit, mortgaged the property to one Sham, Lal who brought a suit upon his mortgage impleading both the mortgagor and the present plaintiffs, and obtained a decree which was made absolute on January the 15th, 1888, in execution of which one of the mortgaged villages was put up to sale and purchased by the second respondent, the eldest son of Gauri Sahai. After that, Gauri Sahai, who, as already stated, had purchased the property at a sale held in execution of the decree on his mortgage, paid to the decree-holder, Sham Lal, Rs. 2,930 odd being the amount remaining due under the decree. Respondents Nos. 2 to 7 pleaded that inasmuch as the present appellants were parties to Sham Lal s decree and had not chosen to redeem Sham Lal s mortgage but allowed Gauri Sahai to pay off the decree, they had lost their right to euforco their mortgage; and these respondents pleaded farther that if the appellants were entitled to enforce their mortgage at al1, they could do so only on paying the amount due on Sham Lal s mortgage, namely, Rs. 2,930 odd on account of principal and Rs. 21,243 on account of interest. The present suit was instituted on the 10th June, 1910, and on August the 2nd, 1910, the appellants presented a petition to the Court in which they prayed that three other persons who were subsequent mortgagees of the property might be made defendants. The Court took up the petition on August the 10th, after the time for bringing a suit against those three persons had expired, and refused to make them parties on the ground that any suit as against them was barred by limitation. In the view which we take of another question which arises in this appeal, it is unnecessary to express any opinion as to whether the Court below was right in refusing the appellant s petition of August 2nd.

(2.) The first important question in this appeal is whether the appellants can now enforce their mortgage. The Court below has held that they are not entitled to do so because they were parties to the suit brought by Sham Lal and had a right under that decree to redeem Sham Lal s mortgage, and as they did not avail themselves of that right, they have lost it and cannot re assert it in the present case. It seems to us that there is nothing in the decree passed in Sham Lal s suit that can be held to debar the appellants from enforcing their mortgage, and we do not understand the decision of the Court below on this point. The decree gave the appellants and Gauri Sahai a right to redeem Sham Lal but did not provide successive periods within which the different parties might redeem each other.

(3.) The second and most important question in the appeal is, on what terms the appellants are entitled to enforce their mortgage. On their behalf, it is contended that the mortgage of Sham Lal is now merged in the decree which he obtained, and that the amount, which the appellants must pay to the respondents Nos. 2 to 7 as a condition precedent to enforcing their mortgage, must be calculated on the decree and not on the mortgage. We cannot accept this contention. In the first place, the decree in Sham Lal s suit only brings the account down to October the 12th, 1907. In the next place, it is quite clear on the authorities and on principles that respondents Nos. 2 to 7, having paid oft Sham Lal s mortgage, are entitled to stand in the shoes of Sham Lal and to resist the sale of the property at the instance of the appellants until the amount due on Sham Lal s mortgage has been paid to them. If authority is needed for the proposition that respondents Nos. 2 to 7 are entitled to hold up Sham Lal s mortgage against the claim of the present appellants, we would refer to the well known case of Goknl Das Gopal Das v. Puran Mal Premsukhdas 10 C. 1035