GADIRAM CHIMNA Vs. PUNAMCHAND

JUDGEMENT

(1.) NIYOGI and Grille, A.J.Cs. 1. This appeal arises out of a suit to enforce a mortgage, which was decreed in the lower Court. Gadiram who was impleaded in the suit as defendant 6 as being the purchaser of a part of the mortgaged property has preferred this appeal. Defendants 1 to 5, viz.. Sadasheo, Morba, Narayan, Mahadeo, Shamrao had, on 23rd June 1921, executed two mortgages with a condition of foreclosure in respect of identical property, one in favour of Sheoratan, plaintiff 1 in the suit, and another in favour of his joint nephew Chudulal. Sheoratan filed Civil Suit No. 137 of 1925 on foot of his mortgage and obtained a preliminary decree for foreclosure on 22nd October 1925. The appellant had purchased on 30th September 1925 one anna malguzari share comprised in the mortgage and later, on 1st July 1926, one absolute occupancy field No. 20, and on 24th July 1927 a portion of another absolute occupancy field No. 65. Out of Rs. 13,500 which was the purchase money of field No. 20, he satisfied the decree passed in favour of Sheoratan.

(2.) THE suit out of which this appeal arises has been instituted on the basis of the mortgage deed executed in favour of Chudulal which, it is alleged, fell to the share of the plaintiff Sheoratan as a result of a partition. The appellant as defendant 6 resisted the suit on the plea that the plaintiff had released the properties purchased by him under three sale deeds referred to above and that in any case the plaintiffs not having filed a consolidated suit on both the mortgages were estopped from enforcing the mortgage in suit against the appellant. The Court below negatived the contentions raised by the appellant and passed a decree against him along with others. It is urged that the lower Court's finding as regards the release of the property purchased by the appellant from the mortgage in suit is wrong. The story that the appellant, who had relied upon the word of Sheoratan, would not have insisted upon any, writing to evidence the release appears improbable. The evidence of Balwantrao (D. W. 2) and Jagoba (D. W. 4) is contradicted by the testimony of Morba (D. W. 3) and does not impress us as true. We agree with the reasons given by the lower Court for holding that the release as pleaded was not proved and affirm the lower Court's finding.

(3.) THE view which has now found legislative recognition was in our opinion the right one. But this question is not vital in the particular facts of this case. Although a decree for foreclosure was passed in the previous suit, No. 137 of 1925, for Rs. 6,251-13-0 that decree was satisfied by the sale of field No. 20 for Rs. 13,500 in favour of the appellant. The property comprised in the decree was not foreclosed and there would be no question of a second foreclosure so far as the property except that purchased by defendant 6 is concerned. This suit itself cannot be dismissed on the principle underlying Section 67-A, T. P. Act, but the question may well arise whether the appellant can equitably be called upon to redeem the second mortgage when he already discharged the first mortgage.