RAMNANDAN PRASAD SINGH Vs. RAM DAS

JUDGEMENT

(1.) This appeal arises out of an action on a mortgage, The appellant is defendant 4. The principal defendant was the occupancy tenant of a certain holding. The plaintiff is a mortgagee under a mortgage obtained by him from the principal defendant 1. It is necessary to state the history of the case in order to appreciate the points which have arisen. In the first place I should like to say that I am indebted to the lucid arguments of Mr. Gandhari Prasad Singh and Mr. Khurshed Husnain which have been of material assistance to me, and although the matter is of considerable importance I propose to state my conclusions at once and not to reserve my decision for the reason that the points for consideration which have been advanced in the case are now fresh in my mind. The facts are these.

(2.) In December 1914, defendant 4, the appellant, obtained two mortgages from defendant 1. To prevent confusion I propose to call defendant 4 the appellant; the principal defendant that is defendant 1, I shall describe as the mortgagor and the respondent-plaintiff I shall describe as the plaintiff. The appellant, as I have stated obtained two mortgages in 1914. The mortgagor was, as I stated, the occupancy tenant of the holding, and on 29 July 1921, the landlord obtained a decree for rent against the mortgagor. On 20 May 1924, the landlord purchased the holding at the execution sale arising out of the action for rent. On 31 May 1922, the plaintiff having paid off the usufructuary mortgage of the appellant of 1914 obtained a usufructuary mortgage from the mortgagor. I have stated that the landlord had purchased the holding in execution of the rent-decree on 20 May 1924.

(3.) Then the plaintiff in his relation to the mortgage, which is the subject-matter of this suit, comes on to the scene and he advances money to the mortgagor tenant to enable him to pay off the rent-decree obtained by the landlord. As security for the money advanced he obtained the mortgage which was sued upon in this action dated 31 August 1924. I should have stated, if I have not already done so, although I have given some indication of the fact, that of the two mortgages of the appellant of December 1914, one was a usufructuary mortgage which was redeemed in circumstances to which I have already referred, and the other was a simple mortgage which still subsisted.