DOOLI CHAND Vs. RAM KISHEN SINGH

JUDGEMENT

(1.) THIS is a suit brought by the Respondents, Ram Kishen and others, against Dooli Chand, the Appellant, to recover back a sum of Rs. 78,393 which the Respondents had paid to the Appellant to prevent the sale of a mouzah called Korina, which had been attached and put up for sale in execution of a decree obtained by the Appellant against one Neogi. The suit claimed, in the alternative, that the amount of Rs. 78,393 should be apportioned between Korina and another mouzah of the name of Nandan. The point, upon the facts found in the Courts below, is a short and plain one, but in order to make it intelligible, it is necessary to refer to the transactions which took place between the parties, though not at great length.

(2.) RAM Rutton Neogi, a zemindar, was the owner of several mehals, and amongst others of two mouzahs called Korina and Nandan. These mouzahs were mortgaged in the way which will be hereafter described. The first mortgage which appears is of the date of the 3rd of July, 1865, and is a mortgage of Korina made by Neogi to the Land Mortgage Bank of India to secure a lac of rupees. In January, 1867, Neogi borrowed from one Luft Ali Khan a sum of Rs. l0,000, and gave as security a mortgage bond on certain mouzahs, not including either Korina or Nandan. It is only necessary to refer to this mortgage bond for the purpose of explaining the next mortgage transaction, and also of explaining a reference which is made in the course of the proceedings to the debt due to Luft Ali Khan. It appears that Luft Ali Khan obtained a decree upon his bond for Rs. 19,416. He did not, apparently, attach the properties included in his mortgage bond, but he attached and was about to sell Nandan. In order to prevent the sale of Nandan, on the 8th of January, 1870, Neogi mortgaged to the Appellant, with several other mouzahs not material to be mentioned, the two mouzahs, Korina and Nandan, to secure Rs. 38,000. The mortgage of Korina was a second mortgage, it being subject to the prior mortgage to the bank; that of Nandan was apparently a first mortgage. The next transaction is a mortgage by Neogi of Nandan and other mouzahs to the Respondents for Rs. 5500. The bank brought a suit on their mortgage and on the 17th of April, 1871, they obtained a decree for the sale of Korina and other mouzahs to realise the debt due to them. On the 20th of July, 1872, Korina was attached by the bank, and also by another decree-holder creditor, one Chuttun Singh. On the 16th of December, 1872, mouzah Korina was cold under Chuttun Singh's decree, but subject to the bank's mortgage, to the Respondents, for Rs. 115. Shortly after the sale the Respondents paid into Court Rs. 58,719 to satisfy the mortgage and decree of the bank against Korina, and in the following October (1873), were put into possession of that mouzah. They, therefore, were the purchasers of Neogis interest in Korina, which had been sold by Chuttun Singh, and paid off the prior mortgage to the bank, and the amount so paid is found by the Courts below to have exceeded the value of Korina.

(3.) ON the 1st of July, 1872, the Appellant sued Neogi on his mortgage for principal and interest. The claim he then made was the same he had notified in the suit brought by the Respondents as mortgagees of Nandan, to which reference has been already made, namely, Rs. l51,239. It appears that sum included penal interest, and the Courts reduced it to a sum of Rs. 78,393. In June, 1873, he obtained a decree, and on the 7th of January, 1874, an order to attach Korina. At the time he obtained that order he had become the purchaser of Nandan, under the circumstances which have been stated; and his obtaining it after his mortgage debt had been thus virtually satisfied was clearly inequitable. Korina being attached, the Respondents intervened, as the purchasers of that mouzah, and as representing the first mortgagees of it, the bank, and filed objections to the attachment and sale. The Respondents in this way made the strongest protest that they could against the sale, but their objections did not prevail. The Judge of Patna disallowed them, and the High Court upon appeal affirmed the decision of the Judge, stating that the Petitioner must be left to his remedy, if any, in a regular suit. The result was that the sale of Korina was ordered to take place; and to prevent that sale, and to protect the property which they had purchased, the Respondents paid into Court the sum of Rs. 78,323 to satisfy the Appellant's decree. They at once gave notice in writing that they should seek a refunding of that money in due course of law, and the present suit was brought for that purpose.