KUNJA BEHARI MISRA Vs. BENDUDHAR PANDA

JUDGEMENT

(1.) This is a second appeal against a final decree in a mortgage suit. The appeal is by defendants 2 to 7 who were impleaded in the suit after the preliminary decree and before the passing of the final decree.

(2.) The suit was brought on 16 November 1935 to enforce a simple mortgage executed by defendant 1 in respect of two properties of which lot No. 2 was a share in a zamindari. Previous to the institution of, the suit, that is on 20th September 1935, the zamindari comprising lot No. 2 had been sold for arrears of revenue. The surplus sale proceeds representing the mortgagor's share amounted to Rupees 692-13-0. Out of this Rs. 562 was sought to be attached by defendants 2 to 7 in execution of their money decree against the mortgagor. On 10 January 1936 the Collector attached Rs. 502-14-7 for defendants 2 to 7 and Rs. 189-14-5 for the plaintiff. On 13 January 1936 a preliminary decree for salewas passed against the mortgagor who was the only defendant at the time. On 10 February 193ft defendants 2 to 7 withdrew Rs. 502-14-7 and on. 11 June 1936 the plaintiff withdrew Rs. 189-14-5. from the Collectorate. On 22 April, 1937 the plaintiff applied for making the decree final, praying that defendants 2 to 7 be added as parties so that a decree might be passed against them for refund of the amount withdrawn by them.

(3.) The application was opposed by defendants 2 and 3, but the learned Munsif, overruling their objections, added defendants 2 to 7 as parties and passed a final decree as prayed for. Against this decree defendants 2 to 7 filed an appeal in the District Court which was heard and dismissed by the learned Additional Subordinate Judge. Hence this second appeal by defendants 2 to 7.