BABU LAL Vs. JALAKIA

JUDGEMENT

(1.) This second appeal arises out of the following facts: On October 16th, 1893, Musammat Durga mortgaged a certain house to the predecessors-in-title of Musammat Jalakia, the present plaintiff- respondent. Sometime in the year 1907, Musammat Durga again mortgaged the same house to the defendant-respondent Kedar Nath.

(2.) On August 19th, 1910, the plaintiff sued on her mortgage, without impleading Kedar Nath. She obtained a preliminary decree for sale on April 21st, 1911, the defendant mortgagor being allowed the usual period of six months in which to redeem. The decree was made absolute in due course, the house was brought to sale and purchased by the plaintiff herself on July 30th, 1912.

(3.) In the meantime Kedar Nath filed a suit on his mortgage, without impleading the prior mortgagee. The suit was filed on June 20th, 1911, and decreed on August 13th, 1911, only fifteen days being allowed to the mortgagor in which to redeem. The house was brought to sale under this decree on February 27th, 1912, (there seems to be a clerical error in the plaint as to the date of this sale) and was bought by the defendant-appellant, Babu Lal. The plaintiff was given formal possession on her auction-purchase, but found Babu Lal in actual possession and failed to dispossess him. Hence the present suit, brought against Babu Lal and Kedar Nath. The main relief claimed is that the defendants be ordered to pay to the plaintiff the sum of Rs. 627 due on the mortgage of 1893, with costs and future interest, and that in case of default the plaintiff may be put in possession of the disputed house, and all the rights of the defendants may be extinguished. There is an alternative prayer for any other relief which the Court may consider proper and it is more particularly suggested that the plaintiff might be given a decree for possession by redemption of Kedar Nath s mortgage.