AKHIL BANDHU GUHA Vs. SURADHUNI DEBYA CHOWDHURANI

JUDGEMENT

(1.) The appellants held a prior mortgage (Ex. S) and two subsequent mortgages (Exs. R and T) in respect of Borne properties which are also covered by a mortgage (Ex. l) in favour of the plaintiff-respondent. There are some additional properties in Ex. 1 and Ex. T, but the matter is of no importance in this connexion. There were two mortgagors, of whom one having died, the other is now the sole respondent representing the entire interest of the mortgagors.

(2.) The suit was for enforcement of the plaintiff's mortgage. The dues on all the four mortgages have been found by the Court below, which has made a decree in form 9, App. D, which is the form applicable to a decree in a suit by the first mortgagee against the mortgagor with the second mortgagee as a party. The Court has thus given the plaintiff relief on the basis of his being the first mortgagee and ignoring the appellant's mortgage (Ex. S), which, if it is taken into account, would make the plaintiff the second mortgagee and would make the appellants the first mortgagees as well as subsequent mortgagees after the plaintiff's mortgage.

(3.) On the basis on which the Court below has proceeded: (a) The Court has made a decree in form 9 and has refused to make a decree in form 10 as was asked for on behalf of the appellants because the plaintiff had not prayed for redemption of the appellants prior mortgage. It has thus ordered the sale of the property subject to the prior mortgage unless a sale free from the prior mortgage is properly applied for under Order 34, Rule 12(b) The Court has refused the appellants prayer to be given liberty to apply for the sale of the additional property mortgaged by Ex. T (which is not in Ex. 1). It has held that this is an advantage which the appellants are claiming in excess of what they can have in the plaintiff's suit. (c) The Court has refused the appellants prayer for a reservation of their right to apply for a personal decree. It has held that such a right cannot be reserved for a defendant.