LACHMI NARAIN SINGH Vs. NAND KISHORE LAL DAS

JUDGEMENT

(1.) On the 5 September 1889, the Government advanced to defendant No. 1 (Raghunandan Sahi) a certain sum of money as tuccavi under the Agriculturists Loans Act (XII of 1884), and the defendant executed a bond in favour of the Government, hypothecating his nagdi malikana right to eight annas of taluk Banapur, bearing towji No. 1109, of the Mozufferpore Collectorate. On failure of the defendant to repay the money in time, the Collector of Mozufferpore filed on the 20 April 1854 a certificate for the sum of Rs. 1,733-14-6 under Sec. 7, Sub-section (1) of the Public Demands Recovery Act (Bengal Act VII of 1880). The property covered by the bond was sold under the said certificate on the 29 January 1897, and was purchased by defendant No. 3, Nandkishore Lal, for Rs. 395. The sale was confirmed on the 8 April 1897. There is nothing m the record now to show what amount was actually due to Government on the date of sale, and, if the amount exceeded Rs. 395, when and how the excess was Recovered or whether any portion of the debt is still subsisting. The bond itself is not a part of the record.

(2.) Before the commencement of the certificate proceedings defendant No. 1 had mortgaged to the plaintiff by a bond dated the 7 August 1893, for Rs. 2,500, the property already mortgaged by him by the bond of the 5 September 1889 as also three other properties. Out of the sum thus advanced by the plaintiff, Rs. 1,145-8 was deposited in the Collectorate in part satisfaction of the first mortgage. The present action is based on the bond of the 7th August 1893, defendant No. 3 being made a party in the suit on the allegation that he has purchased the said property subject to lien in favour of the plaintiff.

(3.) The contention of defendant No. 3 is that the property having been hypothecated by the bond on which the certificate proceedings were based, he is not only the purchaser of the equity of redemption of defendant No. 1, but is also the assignee of the mortgage right of the Government, notwithstanding that the sale took place under the Public Demands Recovery Act.