JUGAL KISHORE Vs. SHAFIUDDIN

JUDGEMENT

(1.) THIS appeal arises out of a suit in which the plaintiff seeks to bring to sale a 10-biswas share in Mouia Mugara. It appears that on the 11th of August 1865, there was a mortgage in favour of Tulsi Ram and Dalchand. Shares in two villages were comprised in the mortgage, namely, in Mouza Mugara and Mouza Chamarpura. A decree was obtained in January 1867 and the property was sold. It was purchased on the 20th of July 1867 by the mortgagees. Since that time, the mortgagees and their transferees have been in possession, apparently without dispute, until the present suit was instituted in 1910, that is to say, over 40 years after the sale to the mortgagees under the mortgage of 1865. The plaintiff s claim is as follows. He says that there was a subsequent mortgage of the 28th of April 1866, which included shares in the same village of Mugara and also in a village called Habibpur. THIS mortgage was in favour of the plaintiff who instituted a suit in April 1867, obtained a decree in July 1867, and in pursuance of that decree put up the village of Habibpur to sale and purchased it himself in part discharge of his mortgage. He did not make the prior mortgagees or their representatives parties to the suit, and he was not made a party to the suit on foot of the mortgage of the 11th of August 1865 and consequently he contends that he is entitled to institute the present suit. In the plaint, he alleged that the decree which Tulsi Sam and Dalchand obtained was not a mortgage-decree but a simple money-decree, which Tulsi Ram and Dalchand took abandoning their rights under the mortgage. In paragraph 7 of the plaint, he contends that all claim under the mortgage of 1865 is gone by reason of the action of Tulsi Ram and Dalchand in abandoning their mortgage but he says that should the Court find that there is still any charge in existence by virtue of this mortgage, that then the property may be sold subject thereto. In the relief the plaintiff claims that the defendant may be ordered to pay the amount which he now claims upon foot of his mortgage and in default that the property may be sold. There is no prayer for redemption or for sale subject to the prior mortgage. If we accept the construction which the plaintiff himself gave in his plaint to the decree of the 19th of January, 1867, then for the reasons given by the learned Subordinate Judge, we think that the present suit cannot be maintained Further, the plaintiff himself, as already stated, brought a prior suit upon foot of his mortgage of the 28th of April 1866. The suit was a suit for sale not only of the village now in question (that is to say Mugara) but also of the village of Habibpur. He obtained a decree and there is no doubt that under that decree he was entitled to sell the village of Mugara subject to the prior mortgage of 1865. The prior mortgagee was not a necessary party to the suit. It is true, that for a time it was held by this Court that a prior mortgagee was a necessary party to a suit by a puisne mortgagee. That view, however, was not the view which had always been taken by this Court and it was not the view taken in 1867 when the decree was obtained. It has been decided by this Court, in the Fall Bench case of Ram Shankar Lal v. Ganesh Prasad 29 A. 385 : 4 A.L.J. 273 : A.W.N. (1907) 97 : 2 M.L.T. 248 that a prior mortgagee is not a necessary party and there can be a suit for sale by a puisne incumbrancer subject to the prior incumbrance. The view of the law taken in that case has been affirmed by Order XXXIV, Rule 1 of the present Code of Civil Procedure. It is quite clear in the present suit that all that the plaintiff could do is either to redeem the prior mortgage or to sell subject thereto. There is no prayer for redemption and so far as the suit can be looked upon as a suit for sale subject to the prior incumbrance, it cannot be maintained because of the prior suit brought by the plaintiff. We do not think that this case, in which the plaintiff is seeking to disturb possession which has gone on for upwards of 40 years, is a case in which we ought to allow the plaintiff to amend his plaint by asking for redemption. In our opinion, from whatever aspect the case is viewed, the suit was properly dismissed by the Court below. We accordingly dismiss the appeal with costs including in this Court fees on the higher scale.