LACHMI NARAIN ACHARY Vs. MITTHU BHAGAT

JUDGEMENT

(1.) This is a defendants's appeal in a suit praying for a decree for Rs. 638 against the defendant on the allegations 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. On behalf of 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 a sum of Rs. 175 and Rs. 554 respectively.

(2.) 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 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 Sec. 73 of the Code of Civil Procedure, and being dated the 29 of September 1922. Two days later the mortgagee withdrew the money.

(3.) The members of the joint family, represented by the plaintiffs here, feeling aggrieved by this order, and having no appeal against it, filed the present suit claiming a refund of the Rs. 623-8-0 and interest thereon Rs. 14-8-0. The plaintiffs alleged that the order under Section 73 of the Civil P. C. was without jurisdiction, that the two later mortgage debts were time-barred, and that no consideration passed. These three points were, of course challenged, and further the defendant pleaded that "the plaintiffs are not all competent to sue." The trial Court dismissed the suit holding the order purporting to be under Section 73 to be legal and that the later mortgages were not time-barred and that there was consideration. It did not frame any special issue as to whether the plaintiffs were competent to sue.