SHANKARRAO KESHAVRAO DESHMUKH Vs. VADILAL MULCHAND GUJARATI

JUDGEMENT

(1.) The mortgage-bond, on which defendant No. 1 obtained a decree, was executed by one Balwantrao bin Nana Deshmukh as heir of Parvatibai for her debts, and Survey Nos. 159, 160, 161 and 162 belonging to her were mortgaged under the mortgage-deed. According to the compromise in the partition suit of 1896 between the heirs of Parvatibai, Survey No. 159 was allotted to Keshavrao, the plaintiffs grandfather, free from the mortgage-debt and the liability to pay the mortgage-debt was allotted to the share of defendants Nos. 2 to 6. In execution of the partition decree the plaintiffs got possession of Survey No. 159, The mortgagee was not a party to the partition decree.

(2.) The mortgagee brought a suit on the mortgage in 1914 against the members of the family to enforce the mortgage. The present plaintiffs were defendants Nos. II and 12 in that suit. During the pendency of the suit the mortgagee gave a purshis by which he consented to abide by the decree in the partition suit and had no objection to a decree being passed in accordance with the compromise in the partition suit In execution notices were not served on defendants Nos. 11 and 12, who are the present plaintiffs, but only Survey Ho. 159 which was free from the mortgage-debt according to the compromise was sold. The plaintiff's paid the money then due by the other defendants. The present suit is brought by the plaintiffs to recover the amount from the mortgagee and the other defendants.

(3.) The learned Subordinate Judge held that the plaintiffs were entitled to recover the amount from the mortgagee and the other defendants On appeal by the mortgagee, the appellate Court set aside the decree against the mortgagee on the ground that it was not shown that the mortgagee recovered the amount improperly and fraudulently.