MUKHRAM MARWARI Vs. BATESWAR MAHTONT

JUDGEMENT

(1.) This is an appeal on behalf of the defendants 1 party. The plaintiffs filed a suit for recovery of Rs. 196-5-9 which was withdrawn by the defendants 1 party out of the sale proceeds in deposit in Rent Execution Case No. 716 of 1928 after a declaration that the defendants 1 party had no right tc withdraw any portion of the surplus sale proceeds and that the plaintiffs had a right to withdraw all the surplus she proceeds. In order to understand the case fully, it is necessary to give a few important details. On December 3, 1921, the defendants 2nd party executed a usufructuary mortgage bond in favour of plaintiff No. 1 who is a member of a joint family. On February 19, 1928, the plaintiff sued upon the mortgage bond and got a decree On September 25, 1928, it appears that the property was sold he execution of a rent decree and was purchased by one Nathu Mahto who is not a party. After satisfying the amount due in the rent decree it appears that a surplus of Rs. 458 odd remained. It is said that the plaintiffs came to know of the sale on August 7, 1929, and on August 8, 1929, they applied for an injunction against the second party restraining him from withdrawing the surplus money. While the defendants second party and plaintiffs were fighting each other it appears that on September 29, 1928, the defendants 1 party having obtained a money decree against the defendants 2nd party actually withdrew Rs. 196-5-9 out of the surplus Rs. 458 odd. The suit was evidently under Section 73. Transfer of Property Act, and was contested by the defendants 1 party alone. The contention of the defendants 1 party was that the plaintiffs mortgage bond was not a genuine document and was without consideration, that the plaintiffs were not entitled to recover the amount which had been withdrawn by them out of the surplus sale proceeds, and that the plaintiffs were not entitled to get any interest and that the rate of interest was excessive. The Munsif who originally tried the case dismissed the suit.

(2.) As a particular incident has occupied this Court a long time in discussing I had better mention it here. It appears that a certain document (which is now Ex. 6) was filed before the trial Court but no use seems to have been made of it in that Court. When the plaintiffs went in appeal before the lower Appellate Court they prayed that these documents be exhibited on their behalf. On April 3, 1933, this prayer was rejected because on that date the then respondents (who are now the present appellants) were not present in Court. We are not concerned with the story as to how the appeal was re-heard, but it appears that the arguments in this case were begun on September 12, 1933 and finished on September 13, 1933. From Ex. H it appears that it was marked as such on September 13, 1933. On appeal the lower Appellate Court has decreed the suit of the plaintiffs and allowed interest at the rate of 12 per cent, per annum simple from September 29, 1929, till the date of the suit. Against this judgment of the lower Appellate Court the defendants 1 party have crane up in second appeal.

(3.) Mr. Yasin Yunus appearing on behalf of the appellants has very clearly put the points of law that he has argued before me. Broadly speaking he has taken up two points; one is whether in a case like this the plaintiffs could take advantage of Section 73, Transfer of Property Act, when their right as a mortgagee was not in jeopardy; in other words, if a sale takes place without annulling an encumbrance, the incumbrancer has no light to proceed under Section 73 of the Act, and the second point is, that the lower Appellate Court has allowed the plaintiffs to exhibit a document at a very belated stage of the case, which apart from being against the provisions of Order XLI, Rule 27, Civil Procedure Code, has materially prejudiced his clients.