PANDIT LACHHMI NARAIN ACHARY Vs. MITTHU BHAGAT

JUDGEMENT

(1.) This is a defendant's appeal in a suit praying for a decree for Rs. 638 against the defendant on the allegation that the defendant had wrongly obtained payment of Rs. 623-8-0 out of the surplus resulting from an auction-sale in execution of a decree on a simple mortgage obtained by the defendant against the plaintiff.

(2.) On behalf of a joint family certain property was made the subject of a simple mortgage in favour of the present appellant, Lachmi Narain, on the 9 of July, 1903, for a sum of Rs. 550. This was followed by two similar subsequent mortgages in favour of the same mortgagee on the 26 of November, 1906, and the 21 of December, 1906, for sums of Rs. 175 and Rs. 554 respectively.

(3.) The mortgagee Lachmi Narain brought a suit for sale on his first mortgage of the 9 of July 1903, and brought the property to sale. It fetched Rs. 1,800. Only Rs. 1,176-8-0 was due on this first mortgage. There was, therefore, a surplus of Rs. 623-8-0 which in ordinary circumstances the mortgagor would have been entitled to have paid over to him. The mortgagee had throughout these proceedings made no mention of the two later mortgages in his favour. When, however, he saw that there was a surplus available he put in an application, asking that it might be paid over to him in satisfaction of, so far as it would go, his later mortgages. The mortgagor objected but despite his objections the claim was allowed--the order giving the money to the mortgagee purporting to be passed under Section 73 of the Civil P. C. and being dated the 29 of September, 1922. Two days later, the mortgagee withdrew the money.