MUNSHI PRAG NARAIN Vs. CHAUBEY PRAG NARAIN

JUDGEMENT

(1.) WE think that the decision of the Court below in this case is correct. The suit was brought to recover two sums of money, namely Rs. 1,478-2-4 and Rs. 3,202- 7-3, from the defendants. The circumstances under which the suit was brought were these. On the 15th of November 1899, Chaubey Prag Narain and Chaubey Bishambhar Nath, defendants, and Jwala Prasad the father of Kirpa Shanker, defendant, executed a usufructuary mortgage in favour of the plaintiff. They executed other mortgages in favour of the same mortgagee. Subsequently in the year 1900, the mortgagors took a lease of the mortgaged property from the plaintiff. The rent payable under the lease not having been paid, suits were brought on the basis of the mortgages to enforce payment of the money secured by them. Theses suits were compromised on the 15th of April 1908, and by the compromise it was agreed that the amount due upon the mortgages was to be paid with interest in five years; that the interest was to be payable in half yearly instalments, and in the event of two instalments falling into arrear the mortgagee would have the option of taking, possession or of bringing the property to sale. The interest not having been paid as agreed upon, the mortgagee took possession of the mortgaged property in May and June 1911. Meanwhile the mortgagors had divided the mortgaged property among, themselves. Two of them, Prag Narain and Bishambhar Nath, had made default in the-, payment of Government revenue due for a period anterior to the possession of the plaintiff mortgagee. This amount was paid by Kirpa Shankar. A further amount, namely Rs. 1,478-2-4,-remained due by those persons to Government and for non-payment of this sum the Government attaohed the shares of Prag Narain and Bishambar Nath; The plaintiff: in order to obtain possession of the property paid the aforesaid amount to Government as also the amount which Kirpa Shankar had paid, and it is to recover these amounts that he has brought the present suit. He claims this sum not only against Prag Narain and Bishambar Nath but also against Kirpa Shankar. The Court; below has dismissed the claim as against Kirpa Shankar and has also refused to make a declaration that the plaintiff has a charge on the mortgaged property for the amounts paid by him. WE think that the view taken by the Court below is right.

(2.) AS against Kirpa Shankar the plaintiff has no cause of action. What the plaintiff claimed in the suit was to recover money which he had paid for Prag Narain and Bishambar Nath. No part of the amount claimed was payable by Kirpa Shankar. On the contrary Kirpa Shanker himself had paid a sum which Prag Narain and Bishambar Nath had neglected to pay and for the non-payment of which their property was liable to be attached by Government for the realization of arrears. AS against Kirpa Shankar, therefore, the plaintiff clearly has no cause of action. In the Court below the plaintiff relied on Section 109 of the Contract Act. Under that section the only persons, against whom the plaintiff could maintain the suit were the two defaulters Prag, Narain and Bishambar Nath, ior whom the amounts claimed were paid. Kirpa Shankar never objected to his share of the property being taken possession of. It was in consequence of non-payment of revenue by Prag Narain and Bishambar Nath that their share of the property was either attached or was about to be attached by Government. AS for the claim for lien on the property, we think that in view of the Pull Bench ruling of this Court to which the learned Subordinate Judge has referred, the claim for this declaration of a lien has been rightly dismissed. We dismiss the appeal but without costs as the respondents are not represented.