LALTA PRASAD Vs. KIFAYAT HUSAIN

JUDGEMENT

(1.) This appeal arises out of a suit for sale upon the basis of a mortgage dated 27 August 1915 executed by one Mehdi Ali Khan to secure a principal sum of Rs. 3,000. Defendants 1 to 4 were the heirs of the mortgagor and defendants 5 to 10 were subsequent transferees. Out of these defendants we are only concerned with Latta Prasad, defendant 7. He pleaded that he was a prior mortgagee under a deed executed by Mehdi Ali Khan on 11 July 1911. He claimed that no decree for sale could be given to the plaintiff, who was merely a subsequent mortgagee, except upon condition that the plaintiff should redeem the prior mortgage.

(2.) The trial Court decreed the plaintiff's suit but did not decide the issue regarding the priority of Lalta Prasad's mortgage, holding that it was unnecessary to decide that point for the purpose of deciding the suit. Lalta Prasad's interest as mortgagee were to remain unaffected. Lalta Prasad came to this Court in appeal and the Bench before whom the appeal was heard came to the conclusion that it would be expedient to decide the question of Lalta Prasad's priority, and his rights under the alleged prior mortgage, in this suit instead of compelling the parties to adjust their rights and liabilities ina separate suit. The Bench accordingly remitted an issue to the trial Court: What was the amount, if any, due to Lalta. Prasad, defendant, on the basis of his mortgage of 11 July 1911 on the date of suit, namely 26th. August 1927 ?

(3.) The trial Court has come to a finding that the amount due on the date mentioned was Rs. 4,120. The respondent Kifayat Husain objects to that finding and argues that the amount due to Lalta Prasad is less than the amount found by the trial Court.