RAMESHWAR RAI Vs. HARAKH LAL SAHU

JUDGEMENT

(1.) The plaintiffs are appellants in this case. They filed a suit for declaration that the four annas share in the rnukarrari interest in Phariatta Dih has not been affected by the mortgage decree which the defendants 1 party had obtained against the defendants 2nd party in mortgage Suit No. 22 of 1931. The mortgage bond was executed on 19 September 1919 by Chumu Lal Rai and Suba Lal Rai (defendants 2nd party) for Rupees 15,000. In order to understand the matter in dispute between the parties it is necessary to give the following genealogical table:

(2.) The plaintiffs are the descendants of Meghu Lal Rai and the defendants 2nd party are the members of the branch of the family of Ram Rai. It is not necessary to give the names of the descendants of Darsan Rai and Banjit Rai. In 1911, a suit for partition had been instituted by Ghanshyam Rai and others. One of the properties involved in it was 16 annas rnukarrari interest in mauza Phariatta Dih. The suit was disposed of by a compromise decree dated 5 February 1921 by which it was declared that each of the branches will have four" annas share in each and every joint property except one. That one is not the subject-matter of dispute in the present case. Therefore, it is clear that this mortgage deed was executed during the pendency of the partition suit. In the mortgage suit the plaint shows that Hargauri Rai, son of Meghu Lal Rai, and his sons were made parties. After giving the facts about the mortgage, the plaintiffs made the following statement in the plaint: 5....All the defendants 1 party are members of a joint family and they have all been benefited by the amount of loan aforesaid and have got the right to redeem the rehan. Hence all the defendants 1 party have been impleaded as party to the suit. 6. The plaintiffs have come to know on enquiry that after the execution of the bond in suit the defendants 1 party quite fraudulently and simply with a view to cause harm to the plaintiffs, have given away out of the mortgaged properties mentioned in the bond in suit, 4 annas share in village Phariata, original with dependencies appertaining to taluqa Kiajori pargana Chakai, tauzi No. 323 to their relations, the defendants second party by virtue of a compromise petition filed in suit No. 188 of 1911, Babu Deepohand Rai and others, plaintiffs versus Babu Chethru Lal Rai and others, defendants, of the Court of the Subordinate Judge of Bhagalpur. The plaintiffs are not bound thereby in law and are to get the said share also sold by auction in case of non-satisfaction of the amount of mortgage debt. But with a view to avoid future, contention they too are impleaded as party to the suit.

(3.) 11. The plaintiffs in view of the above circumstances seek decree as follows: (i) An account of the amount payable to the plaintiffs under the bond in suit may be prepared by the Court and in accordance with the aforesaid account the Court may be pleased to pass a mortgage decree for Rs. 33,634-15-9, the principal amount with interest or for the amount, which may be found due on account, besides costs in Court, interest pendente lite and future interest up to the date of realisation in favour of the plaintiffs by keeping alive the mortgage lien and with orders to get the mortgaged properties sold by auction. (ii) The Court may be pleased to allow a reasonable time to the defendants for making payment of the decretal amount and this order may be incorporated in the decree that in case the defendants do not pay the entire decretal amount within the time allowed by the Court then the right of redemption of rehan may be extinguished and the decretal amount may be realised by putting the mortgaged properties to sale. (iii) Such other reliefs as the circumstances of the case require, may be awarded to the plaintiffs.