BAKHT BAHADUR Vs. KISHUN NARAIN

JUDGEMENT

(1.) THIS appeal arises out of a suit on a mortgage, dated the 5th of August 1870. The plaintiffs sued as purchasers of a part of the mortgaged property and also as assignees of the mortgage over the remainder. Fifteen persons were made defendants as being in possession of portions of the mortgaged property. The plaintiffs have sued to recover against the various sets of defendants an amount of the mortgage money proportionate to the value of the property in their possession. One of the defences set up in the Court of first instance was that the mortgage had already been satisfied. The Court of first instance decreed the plaintiffs suit. It decreed the claim against defendant No. 1 in respect of a sum of Rs. 1,742-5-6, which sum was recoverable from a certain share in a village. A similar decree was passed against defendant No. 2 and defendants Nos, 9 to 15 recoverable from another share in the same village. Similarly in respect of defendants Nos. 3 to 6 and again in respect of defendants Nos. 5 and 6 a decree for specific sums was granted by the Court of first instance. Against that decree, three defendants alone appealed, namely, defendants Nos. 1, 5 and 6. They valued their appeal at Rs. 2,853-10-7. The lower Appellate Court held that the bond in suit had been paid off and that the mortgage had been redeemed and on this finding allowed the appeal, set aside the decree of the first Court and dismissed the plaintiffs suit. The plaintiffs come here in second appeal and it is contended on their behalf that the lower Appellate Court was wrong in dismissing the suit in toto. It is pointed out that defendants Nos. 2 and Nos. 9 to 15 had not appealed to the lower Appellate Court and that they were not parties to the appeal to that Court. It is clear that there was no appeal against the whole decree before the lower Appellate Court and that it ought not to have set aside the whole decree. On the facts found by him, the learned District Judge ought simply to have set aside the decree as against the appellants before him. The defendants Nos. 2 and Nos. 9 to 15 did not appeal to the Court below and have not appeared in this Court. We allow the appeal so far as defendants Nos. 2 and 9 to 15 are concerned and restore the decree of the Court of first instance as against these defendants. The defendants Nos. 1, 5 and 6 who are represented here will get their costs in this appeal. The plaintiffs appellants will get their costs against defendants Nos. 2 and 9 to 15 and the costs in this Court will include fees on the higher scale.