CHHAGANLAL SAKARLAL VANI Vs. JAYARAM DEORAJ THAKAR

JUDGEMENT

(1.) This appeal arises out of execution proceedings. It has given rise to somewhat prolonged arguments. Having regard to the points which have been raised in support of the appeal, it is desirable that I should state the facts which have given rise to this appeal. It appears that one Dagdu died, leaving a minor son Rangnath, two widows Santubai and Kashibai, his grandfather Govind, and an uncle, Yeshvant. It appears that in 1896, Santubai passed a simple mortgage on behalf of her minor step-son Rangnath in favour of Jairam, plaintiff No. 1. Apparently Rangnath's natural mother, Kashibai, was not alive then ; and we do not know exactly when Dagdu died. Anyhow when the mortgagees filed a suit on this mortgage in 1911, they joined Santubai, Govind Balaji, the paternal grandfather of Rangnath, and Yeshvant, the uncle of Rangnath, as defendants. Rangnath had died before the suit. It was stated in the plaint as follows:- The debtor Rangnath, a minor, is dead, and defendant No. 1 has passed the mortgage-deed for her minor son and after his death she is his heir, and defendant No. 2 is the father (father's father) of the minor Rangnath and defendant No. 3 is the paternal uncle of the minor Rangnath. Defendants Nos. 2 and 3 are reversionary heirs of the deceased Rangnath.

(2.) In this suit Govind, the grandfather, filed his written statement in which he pleaded that really the property mortgaged belonged to him. He did not contest the recital in the plaint that Santubai was the heir of the deceased minor Rangnath, and he pleaded that he had been unnecessarily joined in the suit. It seems that a few days before the decision of the suit, the Court directed the names of Govind and Yeshvant to be struck off, and ultimately on September 18, 1911, the following decree was passed:- Rs. 5,000 became due to the plaintiffs under a mortgage-deed Exhibit 18 on the date on which the suit is filed. It is hereby further ordered as follows:- If defendant No. 1 pays in Court on March 18, 1912, or before that day Rs. 5,000 and interest thereon at the rate of nine per cent. per annum from the date of the filing of the suit till payment and costs of this suit as mentioned below, the plaintiff do hand over all the documents they may have got in their possession or power in respect of the mortgaged property to defendant No. 1 or to that person whom she will appoint, and if it is found necessary to do so, that property free from mortagage and free from all the encumbrances created on the same, by the plaintiffs or any persona claiming under the plaintiffs or created by the persons under whom they may be putting forward their claim, should be reconveyed to the defendant No. 1. It is further ordered as follows:-If defendant No. 1 does not pay the aforesaid amount as mentioned above the entire mortgaged property, or a sufficient portion thereof should be sold and the amount of sale proceeds should be paid into Court and should be utilized towards payment of the amount directed to be paid to the plaintiffs, of the subsequent interest and of subsequent costs, and if there remains any balance it should be returned to defendant No. 1, The suit against defendants Nos. 2 and 3 is dismissed.

(3.) Thereafter, in December 1913, the plaintiffs filed Darkhast No. 264 of 1913 in which they prayed as follows:- The decree should be made absolute and interest hereafter should be caused to be paid at nine per cent. per annum. If the amount bo not paid by defendant No. 1 the immoveable property mortgaged, and shown in the accompanying statement of claim should be sold and the amount be paid to plaintiffs.