GOKULDOSS GOPALDOSS Vs. RAMBUX SEOCHAND

JUDGEMENT

(1.) THIS is an appeal from an order of the Court of the Resident at Hyderabad, in the Deccan, dismissing an appeal from a decree of the Judicial Commissioner of the Hyderabad Assigned Districts, by which a decree of the Deputy Commissioner of the Amraoti district was affirmed. This decree was dated the 8th of August, 387!), and it was decreed by it that the Respondent Rambux Seochand, who was the Plaintiff in the suit, was entitled, as mortgagee, to possession of nine houses thereinafter described, and it was directed that he be put in possession thereof. The facts out of which the suit arose are as follows. On the 22nd of June, 187J5, a firm carrying on business as bankers at Amraoti under the name of Puranmull Premsukdoss, by which name it has been sued, executed, by their manager Bhairaodin, a mortgage to Rambux Seochand of immoveable and moveable property at Amraoti for Rs. 26,500, and interest. On the 18th of December the firm, having become further indebted to Rambux Seochand in Rs. 40,000, executed in like manner to him a mortgage of other immoveable property in Amraoti, to secure the repayment of that sum, with interest. Of the nine houses which were the subject of the suit, and are described in the decree of the 8th of August, 1879, one was included in the former mortgage, and the other eight in the latter. The mortgagee was put in possession of six of the houses, As to the remaining three, the latter mortgage contained the following provision: On account of the following three houses, which we have already mortgaged to the New Bombay Bank for Rs. 30,000, reserving the mortgaged lien of the bank on these houses, we mortgage them to you in payment of the sum of Rs. 16,000, subject to the condition that the New Bombay Bank has a prior right for the recovery of money due to it from these houses, and, after full recovery by it, you will be entitled to the balance, if any left. If the balance falls short, we ourselves will be responsible for the payment. At present, those houses being in the possession of the New Bombay Bank, we cannot put you in possession of them, and as soon us they will be redeemed, that is, as soon us the bank's possession of them ceases, yon should understand that they are put in your possession.

(2.) THE Appellant, Gokuldoss Gopaldoss, having obtained a decree for about Rs. 19,000 against Purnamull Premsukdoss, caused the nine houses to be attached and sold in execution of it, and in September, 1876, himself purchased the right, title and interest of Puranmull Premsukdoss in them. On the 21st of April, 1877, ho paid the bank Rs. 5,000 on account of the mortgage debt, and on the 10thof May, 1877, Its. 137. 2a. 10p. as payment in full of its claim upon the mortgage. The debt to the bank had previously been reduced, lie appears to have taken possession of the nine houses, and on the 11th of July, 1877, Rambux Seochand brought a suit against him and Puranmull Premsukdoss, who was made the first Defendant, to recover possession of them, alleging that he was entitled to it under the two mortgages to him. And if the houses wore not restored to him, he claimed the mortgage money and interest.

(3.) THERE was a dismissal of the suit by the Deputy Commissioner, and a remand by the Judicial Commissioner, of which it is not necessary to take any further notice. On the remand, the Deputy Commissioner found that the mortgages to the Plaintiff were. "bona fide," that there was good consideration, that "possession passed to the Plaintiff in accordance with the terms of those deeds," and the Plaintiff was in possession when the Defendant attached the houses. Upon the fourth issue ho held that when Gokuldoss had paid the debt to the bank, he stood to the Plaintiff in the exact position in which the mortgagor, first Defendant, would have stood had he redeemed the bank's mortgage, and that the effect of the payment to the bank was to entitle the Plaintiff to immediate possession of the houses mortgaged to it. Ho gave the Plaintiff a decree for possession of the nine houses, and directed him to be put into possession.