RAM PRASAD Vs. BISHAMBHAR NATH

JUDGEMENT

(1.) This is a first appeal from order brought by a defendant Ram Prasad against an order of the learned Subordinate Judge of Agra in the following terms: The order dated 12 October 1932 is therefore affirmed to the effect that the tenantry shall henceforth make deposits in Court. Those deposits will be made over to the J.D. Bam Prasad on his giving security. The money shall remain in Court's deposit to be made over to the rightful man when the appeal is decided.

(2.) The facts are that defendants 1 to 4 executed a simple mortgage on 19th February 1921 in favour of the plaintiff and defendant 13 for a period of two years, the mortgage money being Rs. 8,000. On this mortgage the plaintiff brought a suit on 16 January 1931 for sale and that suit was decreed on the 4 August 1932. Subsequently to that decree for sale the plaintiff made an application on the 27th August 1932 to the Court in the following terms : That the plaintiff had obtained a hypothecation decree under Order 34, Rule 4, Civil P.C.: It is submitted that the plaintiff's claim was only for principal and simple interest remitting compound interest simply because the property mortgaged was not sufficient to pay off the amount due. On account of bad times, the status and value of immoveable property have fallen down and are declining. The defendants are being benefited by the income from the mortgage property. Whatever amount of mortgage was left with the mortgagee and the subsequent vendee has not yet been paid by him. On the other hand he is withholding it and is benefiting himself with the rent from the property. The delay means entire benefit to him and loss to the plaintiff. It will take about a year in putting the property to sale... It is therefore prayed that an injunction may be issued to the tenants mentioned below directing them to deposit into Court the amount due pendente lite and future and that they should not pay the same to the defendants....

(3.) The defendants were not made parties to this application and the application was granted by an order dated 12 October 1932. There was no order against the defendants but merely an order directing these tenants to pay the rent into Court. On the following day, the 13 October 1932, two judgment-debtors objected, Musammat Bhagato and Ram Prasad, and eventually the Court passed the order now under appeal on the 5 November 1932, in which the Court said that it had heard counsel on behalf of Ram Prasad a transferee from the original judgment- debtor. The Court mentions that money had been been left with Ram Prasad to pay the decree-holder but he had not paid as yet. Any contract of that nature would be a matter between Ram Prasad and the mortgagors and the plaintiff was not a party to that contract and therefore the plaintiff had no legal right to enforce such a contract against Ram Prasad.