MT NAZIR-UN-NISA Vs. MTASIFA BEGUM

JUDGEMENT

(1.) This is a defendant's appeal and arises out of a suit for sale on a mortgage, dated the 7 of October, 1911. It appears that the plaintiff-respondent held a prior usufructuary mortgage over the property which was mortgaged under the mortgage-deed in suit. One of the pleas taken in defence was that as the plaintiff held a prior usufructuary mortgage with respect to the property mortgaged under the deed of simple mortgage now put into suit "the suit for the sale of the equity of redemption was not maintainable".

(2.) This plea found favour with the trial Court and it accordingly dismissed the plaintiff's suit. On appeal by the plaintiff the lower appellate Court has overruled the defendants plea noted above and has passed a decree in the plaintiff's favour.

(3.) The sole ground taken in appeal before me is that the lower appellate Court was wrong in granting a decree to the plaintiff-respondent for sale of the mortgaged property subject to the usufructuary mortgage of the plaintiff herself. In my judgment there is no force in the contention advanced on behalf of the defendant-appellant.