SOMI Vs. RAM NARAIN AND JAI NARAIN

JUDGEMENT

(1.) The only question in 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 ho 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 ih.2 purchaser in execution of his decree were made parties. The prior mortgagee got a decree and put the property to sale and, in execution thereof, 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 defendant should redeem her by paying the sum of Rs. 1,640-13-0, and in case of his failure to do so within six months, possession of the property should be delivered to the plaintiff.