RAM NARAIN Vs. SOMI

JUDGEMENT

(1.) The only question im this appeal is, whether the plaintiff-respondent, who is the purchaser of the property in dispute under a prior mortgage-decree, to which the defendants-appellants were no parties, has a right to eject the defendants, the purchasers in execution of a decree, based on a puisne mortgage, to which the prior mortgagees were no parties. It appears that in the year 1910 the second mortgagees obtained a decree on foot of their mortgage for sale of the property and purchased the property on the 20 of April 1912, in execution of such decree. To this suit the prior mortgagee was not made a party. In the year 1916 the prior mortgagee got a decree for sale on foot of her mortgage, but to this suit neither the puisne mortgagee nor the purchaser in execution of his decree were, made parties. The prior mortgagee got a decree and put the property to sale and, in execution there of, purchased it herself. She has obtained possession over three- fourths of the property and has not got possession over one-fourth, which is in the possession of the defendants.

(2.) She brought the present suit for recovery of possession of the remaining one- fourth also, and, in the alternative, for a conditional decree that the defendant should redeem her mortgage, and in case of his failure to do so, she should be put in possession of the property in dispute.

(3.) The First Court partially decreed the suit. The learned District Judge in appeal has passed a decree in favour of the plaintiff to the effect that the defendants should redeem her by paying the sum of Rs. 1,640-13-6 and in case of his failure to do so within six months, possession of the property should be delivered to the plaintiff. The defendant comes here in second appeal and the contention raised, on his Behalf by his learned Vakil is that such a suit is not maintainable. This contention is fully covered by an authority of this Court in Madan Lal V/s. Bhagwan Das 21 A. 235 : A.W.N. (1899) 41 : 9 Ind. Dec. (N.S.) 859. That case is on all fours with the present case and this appeal must, therefore, be allowed on the ground that the plaintiff has no right to possession of the property under the mortgage on which she bases her title. It was a simple mortgage and not possessory mortgage. The suit was misconceived and should have been dismissed. We, Therefore, allow the appeal, set aside tie decrees of the Courts below and dismiss the plaintiff's suit with costs in all Courts.