UPENDRA CHNDRA SINGH Vs. MOHRI LAL MARWARI

JUDGEMENT

(1.) This is an appeal by the defendant No. 7, Upendra Chandra Singh, one of the several defendants An a suit brought by the plaintiffs Mohri Lal Marwari and others for the purpose of enforcing a mortgage security bearing date 17 September 1886, executed by two individuals Mobarak Ali and Ashraf Ali. By this mortgage bond, 4 properties, or rather shares therein, were mortgaged to the plaintiffs. We are not concerned in this appeal with the properties Nos. 3 and 4. As to property No. 1, what was mortgaged to the plaintiffs was a 2-anna share therein, and, as to property No. 2 five-anna and odd gunda share. It appears that the defendant No. 7 Upendra Chandra Singh had two mortgages executed to him by the same mortgagors in respect of property No. 1, one dated the 21 August, 1882, and the other the 28 August? 1884. Under these two mortgages a 2 1/2-anna share and a 3 1/2-anna share respectively, in the said property, were hypothecated upon these two documents, two ex- parte decrees seem to have been obtained by defendant No. 7 against the mortgagors, or their representatives on the 24 September 1886; and in execution of one of those two decrees, the property No. 1 was sold, and purchased by himself on the 20 June 1887, and possession was taken by him on the 1 September of the same year. It was, we may here mention, during the pendency of these two suits brought by the defendant No. 7, Upendra Chandra Singh, that the plaintiffs mortgage was executed, but the plaintiff were not made parties to those suits, and the question arises in this appeal, whether the doctrine of his pendens applies to them, or in other words, whether the decrees obtained in those suits are binding upon them. The property No. 2 was sold for arrears of Government revenue in the year 1889. A certain amount was hit in the hands of the Collector as surplus sale-proceeds of that property, and a certain amount was withdrawn by the defendant No. 7, and this he did in execution of a decree or order which he had obtained under Section 90 of the Transfer of Property Act after the sale of the mortgaged property, to which we have already referred.

(2.) The Subordinate Judge has held that the plaintiffs are not bound by the decrees obtained by the defendant No. 7 on the 24 September 1886, and by the sale which took place in execution thereof, and that therefore the plaintiffs are entitled to redeem defendant No. 7, and, further, that the latter is bound to account for all that he had received during the period of his possession of property No. 1. And as to the surplus sale-proceeds withdrawn by the said defendant No. 7 he was of opinion that it represented property No. 2 itself, and that the defendant No. 7; Upendra phandra Singh, was bound to make good to the plaintiff? the amount which he thus withdrew in respect of the share of the property mortgaged to them. He accordingly directed an account to be prepared showing what was actually due to the defendant No. 7. An account was accordingly prepared; and the Subordinate Judge has passed a decree in favour of the plaintiffs declaring that on payment of the amount shown in the said account as due to the defendant No. 7, the plaintiffs would be entitled to redeem him.

(3.) The defendant No. 7 has appealed against this decree, and various objections have been raised before us against the judgment and decree of the Subordinate Judge, which we shall presently deal with.