SOBHA RAM Vs. RAN SINGH

JUDGEMENT

(1.) This and the connected Appeal No. 70 of 1905 are cross appeals from the judgment of the Subordinate Judge of Moradabad, dated December 16th, 1904, by which he partially allowed and partially dismissed the suit of the plaintiff Sobha Ram against the defendant Ran Singh and others.

(2.) It appears that one Badan Singh, father of the first three defendants and grandfather of the other four, had in July 1882 mortgaged certain property to Khetal Das and another. On the 24 August 1893 Badan Singh mortgaged the same property to Balak Ram, father of the plaintiff Sobha Ram, to secure the sum of Rs. 2,000, Subsequently Balak Ram obtained a decree, by which, under the direction, of the Court, he, by paying Rs. 1,858-3-3, redeemed the prior mortgage of Khetal Das and so under the provisions of Section 74 of the Transfer of Property Act acquired the position of first mortgagee on paying the Rs. 1,858-3-3 payment of which is admitted.

(3.) Balak Ram then instituted a suit against his mortgagor Badan Singh to recover the amount due on foot of his mortgage of August 1893 and also to recover the sum he paid to redeem the prior mortgage, and for sale of mortgaged property in default of payment. He obtained a decree for sale in March 1895 and an order absolute for sale on October 25th, 1897. The only person impleaded as defendant in that suit was Badan Singh; his sons and grandsons were not made parties to it. Then Ran Singh and his two brothers and four nephews instituted a suit against Balak Ram to have their interest in the ancestral property exempted from sale on the ground that they had not been impleaded as parties in Balak Ram's suit although he knew of their existence. They obtained in April 1902 a decree declaring that their 3/4 interest in. the mortgaged property was not saleable in execution oil the decree which had been given against their father and grand father Badan Singh. Thereupon the present suit was instituted by Sobha Ram, son of Balak Ram, against the successful plaintiff's in the suit; last mentioned to recover the sum of Rs. 5,458-33 said to be due on Badan Singh's mortgage and in default for sale of the 3/4 interest of defendants in the mortgaged property which had been released from attachment in compliance with the decree of April 1902.