GUMANJI DHIRAJI MARWADI Vs. VISHWANATH PARBHU HINGMIRE

JUDGEMENT

(1.) One Parbhu mortgaged four properties to Gumanji Dhiraji for Rs. 275 on the 15th September 1903. Gumanji filed a suit (No. 340 of 1914) against Parbhu's eon and four others to recover Us. 539-8-0 due under the mortgage and obtained a decree which provided that defendants Nos. 3 to 5, who apparently made themselves personally responsible for the debt, should pay the amount claimed with costs of the suit, of the plaintiff within six months; that if they failed to do so, then the amount should be recovered by sale of the property No. 3; and that in case the amount realized by the sale of the said property should be found insufficient, then the plaintiff was at liberty to seek relief under Section 15B, Clause (2), of the Dekkhan Agriculturists Relief Act for bringing the other properties to sale for the satisfaction of the deficit amount. The second defendant was impleaded because the debt was said to have been incurred for his benefit by the father of defendant No. 1, and his property No. 3 was primarily made liable for the decretal amount.

(2.) We have not got the decision of the Subordinate Judge who tried that suit before us, and so we are unable to say why property No. 8 belonging to defendant No. 2 was primarily made liable for the decretal amount and not equally together with other properties which Parbhu had mortgaged. The second defendant appealed from the decree making plaintiff the only respondent -~~" and the appellate Court amended the decree by setting aside the order of the lower Court against defendant No. 2 and against property No. 3. The reason for that decision was that no part of the mortgage debt had been raised for the benefit of the sesond defendant; therefore the mortgage was not binding on property No. 3.

(3.) Naturally that decision would affect the interest of the first defendant, and it is certainly remarkable that the appellate Judge should not have noticed that, and should not have insisted upon having defendant No. 1 added a party respondent. However the fact remains that without hearing the first defendant the appellate Court varied the decree of the trial Court in a way which affected the interests of the first defendant. The plaintiff sought execution of the decree, when the first defendant contended that as he was not a party to the appeal it could not bind him. And he was therefore, entitled to insist upon the plaintiff first recovering his debt from the sale proceeds of property No. 3. The Subordinate Judge, however, directed execution should proceed and that the Darkhast should be sent to the Collector for sale of the property.