RAMESHWAR PRASAD AGARWALA Vs. DEVENDRA NARAYAN OJHA

JUDGEMENT

(1.) This is an appeal by a decree-holder who is dissatisfied with the order passed by the learned Subordinate Judge, first Court Arrah, dated 5 January 1942, by which he has been ordered to eon-tribute for the share of the mortgage security which he had purchased in the following circumstances. Pandit Sivendra Narain Ojha, Jai Ramendra Narain Ojha and Devendra Narayan Ojha are three brothers, who owned a number of properties including village Bhakura regarding which the question arises in this appeal. In the year 1929 during the pendency of a partition suit between these three brothers, a pleader receiver was appointed. After the brothers had become separate in law, Jai Ramendra Narain Ojha executed a mortgage bond on 3 June 1929, with respect to his one-third share in three villages including village Bhakura for a sum of Rs. 3000 in favour of the appellant. The mortgagee obtained a final decree on the basis of this bond on 30th November 1939. In execution of this decree he purchased the properties including one-third share of his mortgagor in village Bhakura on 15 January 1937.

(2.) On 12 June 1929, the receiver with the sanction of the Court borrowed a sum of Rs. 1750 from the same mortgagee and executed a mortgage bond in which he gave in security 16 annas of village Bhakura to the mortgagee, that is to say, one-third share of each of the three brothers. It will be noticed that the mortgage bond by the receiver was subject to the earlier mortgage executed in favour of the mortgagee so far as one-third share of Bhakura was concerned. On the foot of this mortgage bond, the mortgagee obtained a decree against the receiver and the three brothers. The preliminary decree was passed on 2lst May 1935, but in appeal the decree was varied in favour of the decree-holder by adding some interest on 27 May 1937. A second appeal to this Court was also dismissed. The present question arises out of further proceedings in connexion with this decree. On 16 September 1929, Ram Shivendra Narain Ojha, executed a mortgage in favour of the same mortgagee with respect to his one-third share in this village and in other properties for Rs. 1500. On 12 February 1930, he executed another mortgage bond in favour of the same mortgagee to secure a further sum of Rs. 1000 in which also he gave as security his one-third share in some villages including his one-third share in village Bhakura. The mortgagee instituted a single suit on the basis of these two mortgage bonds against Ram Shivendra Narain and obtained a final decree on 14 July 1933. In execution of this decree, he purchased one-third share of Ram Shivendra on 3 November 1935 in the village in question and in other villages. It will be noticed that the mortgagee thus became the purchaser of one-third share of Jai Ramendra Narain in execution of his mortgage decree obtained on the earliest bond and also of one- third share of Earn Shivendra Narain in execution of his decree on the last two bonds which were subject to the earlier two bonds.

(3.) After the preliminary decree on the foot of the mortgage bond of 12 June 1929 was affirmed by this Court, the mortgagee on 2 September, 1939 applied to have his preliminary decree made final. A number of objections were raised by Debendra Narain, but it is necessary now to consider only one objection. That objection was that after the passing of the preliminary decree the mortgagee having purchased two-third share of village Bhakura representing the share of the other two brothers namely Jai Ramendra and Ram Shivendra on 15 January 1987 and on 3 November 1935, the mortgage decree should be held to be satisfied to the extent of two-thirds, and therefore the share of Devendra Narain was liable only to the extent of one-third of the mortgage debt and that the final decree should be passed to this effect. The Courts below overruled this contention on the ground that this would amount to going behind the decree which was affirmed by the High Court in second appeal. The matter came to this Court in second Appeal No. 996 of 1940 when after narrating the facts which I have stated above I delivered the judgment of the Division Bench the learned Chief Justice agreeing and held that this objection ought to have been entertained and remanded the case to be decided upon the merits byour order dated 10th November 1941. In pursuance of that order the learned Subordinate Judge has first considered whether Debendra Narain was or was not a party to the previous two mortgage decrees and points out that it was wrongly represented to us that Devendra Narain was not a party, and therefore he overruled this objection. This contention is not raised any longer before us. He then addressed himself to the question whether the mortgagee, who is the appellant before us, was liable to contribute rateably towards the final decree under consideration inasmuch as the mortgage security was split up. He held that the mortgagee was bound to contribute to the extent of two-thirds. Hence the appeal before us.