DEBI PROSAD SAHI Vs. DHARAMJIT NARAYAN SINGH

JUDGEMENT

(1.) The first defendant in this case, one Debi Prosad, and his co-sharers "executed an usufructuary mortgage of village Kathtal in favour of one Ramrup in 1885. He assigned it to the plaintiff Dharamjit and his brother Sarabjit. Thereafter, the two brothers leased half this property back to Debi Prosad; The rent fell into arrears and Debi Prosad then executed a simple mortgage of 8 annas share out of the entire 16 annas of Mouza Kathtal, etc., constituting my (Debi Prosad s) proprietary right which has from before been held in zurpesgi lease by the said creditor, in favour of Dharamjit. At that time Sarabjit was dead, leaving a son Masudan. Dharamjit and Masudan are joint and the former is the kurta.

(2.) The due date of payment was the beginning of September, ]892, and this suit was instituted by Dharamjit alone on the 15th August, 1904. It was decreed ex parte in that year and the decree was made absolute in 1908. The decree was set aside under Order IX, Rule 13, and was ultimately decreed in November, 1908. The defendants, who are Debi Prosad and several subsequent purchasers, appealed.

(3.) Two points are taken on their behalf. The first is that the suit must fail in the absence of Masudan, and the second is that the plaintiff; cannot sue on the mortgage of 1892 alone, while the usufructuary mortgage of 1885 is still unsatisfied.