MT ANPURNA KUNWAR Vs. RAM PADARATH

JUDGEMENT

(1.) The plaintiff brought this suit to enforce a simple mortgage of 15 March 1898, by the sale of certain villages. The mortgage was for Rs. 13,200 bearing interest at 1 per cent, per month for a period of three years, and eight villages were hypothecated. The mortgage was contracted to pay off earlier mortgages. On the 1 of November 1898, the mortgagor executed a second mortgage of the same villages to Babu Inder Sen Singh who is now represented by Mt. Anpurna Kunwar.

(2.) On 4 May 1900, the mortgagor executed a usufructuary mortgage in favour of the plaintiffs for payment of the sum of Rs. 17,712 due on the mortgage of 15th March 1898, and other items, amounting in all to Rs. 22,500 giving possession of the two villages of Rajdharpur and Konda. Under this mortgage the mortgagee was entitled to sue for the amount due to him on dispossession, and he would in that case be entitled to recover also from the property hypothecated under the bond of 15 March 1898. It is this condition with which we are mainly concerned in this appeal, as the plaintiffs admit that their right to sue arose when they were dispossessed of the village of Konda on the 24 of February 1911. Meantime the plaintiffs had in 1904 purchased the village of Rajdharpur, but as the result of a suit brought by the second mortgagee Mt. Anpurna in 1909, the village of Rajdharpur was again sold and purchased by Mt. Anpurna.

(3.) The plaintiffs filed this suit on 9 December 1922, and have obtained a decree against three villages, namely, Rajdharpur and Pura Sarwan in the possession of Mt. Anpurna and Khalispur which had been purchased in 1919 by Durbali Tewari (Defendant No. 4). This appeal is filed by Mt. Anpurna who claims that the suit is barred by limitation as against the villages of Rajdharpur and Pura Sarwan. The suit has been decreed on two grounds: first, because the mortgage of 1898 has been held to have become merged in the mortgage of 1900, and thereby acquired the period of limitation applicable to that deed, and secondly, because the order of the District Judge of Azamgarh passed in 1912 in Anpurna's own suit, to the effect that her claim was subject to the prior charge of the plaintiff's mortgage operates as "practically" res judicata. We do not agree with either of these findings. The deed of May 1900, although executed to satisfy the mortgage of March 1898, is of an entirely different nature.