SM SONA DEBI Vs. BHOLA PROSAD SAHI

JUDGEMENT

(1.) The question for decision in this appeal by the plaintiffs is whether their application for making the preliminary mortgage decree final is barred by limitation. The facts are these: Bhola Prosad Sahi and others, hereinafter to be referred to as the Sahis for the sake of convenience, executed a mortgage bond in favour of the appellants on 20-1-1917, and also another mortgage bond in favour of the same appellants on 21-3-1918, by which they hypothecated certain immovable properties. The Sahis had executed another mortgage bond on 2S-6- 1921, in favour of the family of Ramsarisht Singh, Satnarain Singh and others, and also another mortgage bond dated 28-9-1927, in favour of the same Ramsarishth Singh and others in which some of the properties which were covered by the bonds of 1917 and 1918 in favour of the appellants were also given in security. Ramsarishth Singh and others instituted Suit No. 8 of 1933 in the Court of the second Subordinate Judge of Muzaffarpur to enforce their dues on the mortgage bonds of 1921 and 1927. The appellants were impleaded in that suit in order to enable them to redeem because the plaintiffs therein alleged that they were subrogated to the rights of the mortgagees in eight other mortgage bonds of the years 1904 to 1916, the details are given at page 42 of the paper book. Some other transferees from the Sahis and persona interested in the equity of redemption were also made parties.

(2.) The appellants instituted Suit No. 53 of 1933 in the same Court to enforce their dues on the mortgage bonds of 1917 and 1918 and made Ramsarisht Singh and others as party defendants in the action to enable them to redeem. The mortgagees of Suit No. 3 of 1933 will hereinafter be conveniently described as defendants 7 to 15, the numbers which were given to them in the plaint of mortgage suit No. 53 of 1938 (the rights of the mortgagees in the mortgage bonds of 1921 and 1927 have by an arrangement between the mortgagees become vested in defendants 7 to 15). In this suit certain other persons who were said to be interested in the equity of redemption and the transferees from the Sahis were also made parties. Defendants 7 to 15 set up in the written statement their priority to the extent that they claimed to be subrogated to the rights of the mortgagees in the eight bonds already referred to. With the consent of the parties, the learned Subordinate Judge tried these two mortgage suits together. Issue 4 in mortgage suit No. 3/33 and issue 3 in mortgage suit No. 53/33 was common to both, namely, the right of priority with respect to the bonds of 1917 and 1918 and the eight bonds of the years 1904 to 1916. The learned Subordinate Judge held that as the provisions of Section 92, T.P. Act, have a retrospective effect, the plaintiffs of suit No. 3 were entitled to be subrogated in respect of the eight mortgage bonds. But the plaintiffs of suit No. 53 were held not entitled to any legal subrogation in respect of the four mortgage bonds of the years 1906, 1907, 1908 and 1914 as there was no contract in writing registered to that effect in their favour. The two suits were disposed of by a single judgment dated 6-2-1935 in which the learned Subordinate Judge dealt with the two suits separately and ordered that separate mortgage decrees be prepared on the two mortgage bonds in each suit, and that the plaintiffs of suit No. 53 shall not have any priority for their mortgaged dues in respect of the eight mortgage bonds to which priority was declared in favour of defendants 7 to 15. As a result two separate preliminary mortgage decrees were prepared in the two suits.

(3.) The appellants being aggrieved by that portion of the finding in the judgment which gave the plaintiffs of suit No. 3 priority with respect to their eight mortgage bonds filed two separate appeals to this Court. First Appeal 189A was against the decree prepared in suit No. 3 of 1933 and First Appeal No. 189B was against the decree prepared in suit No. 53 of 1933. The Stamp Reporter pointed out at p. 49 that in the decree prepared in suit No. 53 of 1933 the finding that the plaintiffs of suit No. 53 of 1933 shall not have priority over their mortgage dues in respect of the eight mortgage bonds paid by plaintiffs of suit No. 3 of 1933 has not been inserted and, therefore, he was unable to make out how the Appeal No. 189B which arose out of the decree in Suit No. 53 of 1933 was maintainable wherein the only relief claimed was that the finding on the question of priority should be set aside when no mention of any priority was made either in the judgment or in the decree of suit No. 53. Three months later another report was submitted by the Stamp Reporter which pointed out that the mortgage decrees were not in the proper form as provided in Appendix D, Civil P.C., and that both the appeals have been valued at Rs. 1690 and contain the same set of grounds and the relief claimed was identical, namely, that the finding of the Court below on the question of priority and subrogation be modified. The Stamp Reporter further pointed out that a fixed fee of Rs. 15 only was paid in appeal No. 189A and no court-fee was paid in Appeal No. 189B. Upon a reference to a number of decisions the Stamp Reporter submitted that ad valorem court-fee of Rs. 255 was payable on the memorandum of Appeal No. 189A and as the value of the eight bonds was Rs. 3098, there was a deficit of Rs. 255 minus Rs. 15 paid already, that is, Rs. 240 with regard to the memorandum of appeal in First Appeal No. 189B. The Stamp Reporter pointed out that a mortgage decree had been given to the plaintiffs with this reservation that they have no right of priority in respect of Rs. 1690 and the plaintiffs relief in this appeal was for removal of that condition in respect of Rs. 1690 only. The value of the appeal was thus Rs. 1690 and the ad valorem court- fee payable thereon was Rs. 150. On 14-2-1936 a further report was submitted. It was pointed out that in First Appeal No. 189A the plaintiffs-respondents were allowed priority in respect of Rs. 3098 covered by the eight bonds, and in ground No. 4 the appellants wanted that their priority in respect of Rs. 1690 should have been allowed by the trial Court in suit No. 53. The Stamp Reporter observed that he could not understand how in First Appeal No. 189A the finding of the trial Court not allowing priority to the appellants in Appeal No. 189B arising out of a decree passed in suit No. 53 could be challenged. The reason for this objection in that report will be appreciated because of what happened in the meantime in the High Court.