MADHURAM HAZARIKA Vs. BHOTONG CHUTIYA

JUDGEMENT

(1.) This appeal arises out of a suit for redemption of a mortgage against the decision of the Additional District Judge of the Assam Valley Districts reversing the decision of the Munsiff.

(2.) The relevant facts are these: The defendant No. 2 mortgaged 33 bighas odd of land to the defendant No. 1 on the 28 February, 1912. On the 23 March, 1915 the defendant No. 2 executed another mortgage in favour of the plaintiff for 12 bighas of land which included 8 bighas out of the lands mortgaged to defendant No. 1. Subsequent to the second mortgage the defendant No. 1 brought a suit on his mortgage, obtained a decree and in execution of that decree purchased the mortgage property himself in December 1917. The plaintiff was not made a party to that suit. The plaintiff brought a suit on his mortgage and obtained a decree for sale against defendant No. 2. He also did not make defendant No. 1 a party to it. Apparently this suit was brought after the purchase by defendant No. 1 in execution of his own mortgage decree. When the plaintiff sought to bring the property under his mortgage to sale the defendant No. 1 objected to it and 8 bighas of the lands which ware included in both the mortgages ware released. The plaintiff then brought the present suit in order to redeem the entire 33 bighas of land which were mortgaged by defendant No. 2 in favour of defendant No, 1. The defence of defendant No. 1 which is now necessary to state was that the plaintiff was entitled to redeem only 8 bighas of land which were comprised within the plaintiff's mortgage and no more. The trial Court made a decree in favour of the plaintiff allowing him to redeem 8 bighas of land on payment of a proportionate share of the mortgage money that was due under the decree obtained by the defendant No. 1 on his own mortgage.

(3.) On plaintiffs appeal to the Judge that decision has been set aside and a decree has been made in favour of the plaintiff allowing him to redeem the whole of the lands mortgaged by defendant No. 2 to defendant No. 1.