SUBHANKHAN RAMJANKHAN Vs. LALKHAN HAJI UMARKHAN

JUDGEMENT

(1.) THIS is a second appeal against the judgment and decree of Mr. N.H. Mujumdar. Third Additional District Judge, Akola, in Transfer civil Appeal No. 53-A of 1943, decided on 26-6-1943.

(2.) THE suit was on the footing of a mortgage bond and the present appellant having stood surety for the repayment of the amount was joined as a party and against him relief was claimed that in case the sale of the property did not satisfy the debt, the balance should be ordered to be recovered from the surety. The trial Court passed a conditional decree and in so far as it affects the surety the wording of this decree in the appellate Court is: In default the property described on the reverse shall be sold and in case the mortgaged house is sold and the sale proceeds do not fully satisfy the decree, the balance due shall be recovered from defendant 2...

(3.) BEFORE taking up the two arguments urged before me on behalf of the appellant it is necessary to reproduce the material part of the mortgage bond which deals with the contract of guarantee. It reads thus: In case the mortgaged property passes to others because of any body's rights in any way being found to the property mortgaged by the debtor, I will pay your amount mentioned above with sharti (penal or conditional) interest. I further agree that I myself will personally make good the whole of the deficit also that may be found on the sale of the mortgaged property