MUSAMMTAT RAMPIA Vs. HAZARI LAL

JUDGEMENT

(1.) THE facts which have given rise to this second appeal are as follows: On the 17 of August 1900 one Dabi Das made a mortgage of his property to one Deo Karan Das. Dabi Das rights were sold at auction in execution of a simple money decree and purchased by Jwala Prasad, a son of the mortgagor. On the 30 of March 1911 Jwala Prasad got possession. On the 5 of May 1912 Jwala Prasad gold the property to his brother, Mathura Prasad, who had been adopted by an uncle of his. On the 25 of July 1912 Mathura Prasad sold the property to his wife, Musammat Rampia. THE plaintiff is the son of the original mortgagee, Deo Karan Das. During his minority a suit was brought by his next friend and uncle, Chiranji Lal, on the 21 of September 1912 to enforce the above mortgage. To this suit neither Mathura Prasad nor Musammat Rampia, the transferees of the property, were impleaded. THE then plaintiff got a decree for sale, put the property to sale and purchased it himself on the 2nd of June 1917. When be went to take possession of the property he was resisted by Musammat Rampia, defendant No. 1, who took an objection saying that she was the owner of the property and that she not having been a party to the decree was not bound by it. That objection was allowed and the plaintiff failed to obtain possession of the property. THE plaintiff has now brought this suit for setting aside the order of the Execution Court passed on the 23 of April 1918 disallowing his application for being pat into possession and in the alternative he sues for sale on the mortgage. THE amount which he claims is the amount mentioned in the final decree for sale. Several defences were taken to this suit. THE one which has been pressed before us is that a second suit did not lie on the mortgage. THE Trial Court repelled this contention and gave the defendant an opportunity to redeem on payment of the amount doe under the mortgage. THE lower Appellate Court has confirmed that decision. THE defendant comes here in second appeal. We think the Courts below have come to a correct conclusion in holding that, in the circumstances, the second suit lay on the mortgage. We are of opinion that there is no force in the grounds of appeal objecting to the present suit on the ground that a second suit on the mortgage did not lie. THE result of the plaintiff not impleading the present defendant in the previous suit was that she was not given an opportunity which she ought to have been given of redeeming the plaintiff's mortgage. That opportunity was the only right which she could claim. THE mere fact that she purchased the property would not do away with the mortgage. THE opportunity has been given to her by the Courts below and in our opinion she is not entitled to any further right THEre is no force in this appeal and we dismiss it with costs including in this Court fees on the higher scale.

(2.) THERE is one point on which we wish to amend the decree of the First Court confirmed by the Second Court and it is this, that the plaintiff will be entitled to a decree for sale of the property in cage the defendant does not pay the amount due to him within six months from this date. In case of the defendant's failure to do so, the property will be sold by auction. As the mortgage on which the suit was brought was a simple mortgage no decree for foreclosure could be passed. The decree will be prepared under Order XXXIV, Rule 4. The plaintiff-respondent is entitled to his costs of this appeal including in this Court fees on the higher scale.