MONOHAR LAL Vs. RAM BABU

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiff sought to realize the amount of a mortgage, dated the 4th of June, 1877, by sale of the mortgaged property. The plaintiff alleged that the mortgage was in renewal of another mortgage of the 12th of June, 1875, and he claimed priority for his mortgage as of that date. He further set forth in his plaint that the ancestor of the defendants first party had made a mortgage of the 8th of November, 1875, in favour of the ancestor of the defendants 9--11, that a suit had been instituted on foot of this mortgage of the 8th of November, 1875, and the property sold, but he submitted that this mortgage ]of the 8th of November, 1875, must under the circumstances, be deemed to be puisne to his mortgage, but that if any part of the defendant s mortgage should be held to have priority over his mortgage, then he asked that the property might be sold subject to the debt that had priority.

(2.) The defendants 9--11 pleaded, amongst other things, that the mortgage of the 8th of November, 1875, was a renewal of a still earlier mortgage bond of the 5th of December, 1869, and that consequently they had priority, and that the plaintiff could not have a sale of the mortgaged property without redeeming them.

(3.) It appears from the evidence that the defendants 9--11 brought a suit on foot of the mortgage of the 8th of November, 1875, in the year 1887. A decree was obtained upon foot of that mortgage, the property was sold and purchased by the defendant, 3rd party, and they have been in possession ever since 1892 or thereabouts. It appears, however, that the mortgagors of the mortgage of the 4th of June, 1877, were not parties to the suit. The present suit was instituted in the year 1909. The original amount secured was Rs. 350, the interest being 13 annas per cent, per mensem compound interest. The amount due on this bond at the date of the institution of this suit was Rs. 7,000, but the plaintiff only claimed Rs. 6,000, because the property was not value for the full amount. The learned Subordinate Judge gave the plaintiff a decree for so much of the mortgage debt and interest as was due under the mortgage of the 12th of June, 1875. He disallowed the rest of the claim as being puisne to the plaintiff s mortgage of the 8th of November, 1875, and the plaintiff waived his claim thereto. The learned Subordinate Judge also disallowed the defendants pleas wherein they sought to take advantage of the earlier mortgage of the 5th of December, 1869, on the ground that this bond of the 5th of December, 1869, was not produced and that secondary evidence to prove it was not admissible.