PHUL CHAND Vs. MUSAMMAT SURJI

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by the plaintiffs-appellants, Phul Chand and Kanchu Mal, for on the basis of a mortgage of 7 April 1916 in their favour. The defendants Nos.4 who are the answering respondents held two prior mortgages on the same property, one executed on 7 December 1907 and the other on 13 October 1915. After the date of the plaintiff's mortgage, namely in the year 1919, these defendants purchased the property for a sum of Rs. 5,000. Out of this sum, Rs. 3,800 was taken in statistic faction of the mortgage of 1907 including interest, Rs. 43-12-0 was credited on account of the mortgage of 1915 and the remainder went in satisfaction of an earlier mortgage of the year 1887 in favour of the plaintiffs. It is now settled law that, under such circumstances, the defendants are entitled to hold up the earlier mortgages which were satisfied out of the sale consideration as a shield against any attempt to deprive them of the property. The Courts below have accordingly passed a decree requiring the plaintiffs, as a condition of getting the property sold, to re-pay to the defendants the amounts of the mortgages of 1907 and 1915. Against this decree the plaintiffs appeal. Of the eight grounds of appeal the only ones that have been presses are these contained in the 1st, 7 and 8 paragraphs. The first pie? was, that as the mortgage, of 1907 purported to be a usufructuary mortgage the defendants were not entitled to claim any interest under . It has been found and cannot be disputed that, although this mortgage purported to be a usufructuary mortgage the defendants were unable to obtain possession. There was also a definite covenant in the mortgage-deed of 1997 that the defendants should be entitled to interest in the event of their being unable to obtain possession. The Courts below have rightly allowed interest under this covenant. The 7 plea is to the effect that only a sum of Rs. 43-12 on account of the mortgage of 1915 was allowed as part of the sale price on the r purchase of the property by defendants, they are only entitled to claim this amount as a charge on the property. There is nothing on the record to show why the whole amount of the decree under this mortgage was not included in the sale consideration, but it has been found by the Court below, as a fact that the whole amount of the mortgage was due on the property. As the amount was decreed to the defendants themselves they are entitled to claim it. The last point has reference to the form of the decree passed by the Court below. The decree directs that, unless the plaintiffs pay the amount by the date fixed in the decree under the earlier mortgages the defendants Nos. 2--4 shall be at liberty to apply that the suit be dismissed. The appellants contention is that the decree should have directed the property to be sold having the prior mortgages to get what they could from the sale proceeds. THIS is not the law. The defendants are prior charge- holders in possession of the property and are not liable to have their possession disturbed until their, charge is paid off. The form of the decree in some cases, given as form No. 8 Appendix D of the Civil P. C., provides that in case the plaintiff fails to make the necessary payment to prior mortgagee the latter shall be at liberty to apply that the suit be dismissed or for the sale of the mortgaged property. The option lies with the prior mortgagee, and as the prior mortgagees fn this case are perfectly satisfied with the decree as it stands, the plaintiffs have no cause of complaint.

(2.) THE result is that the appeal fails and is dismissed with costs including in this Court "fees on the higher scale subject to this that the time for the plaintiffs to pay the money due to the defendants Nos. 2--4 is extended to three months from this date.