SALIG RAM MISIR Vs. LACHHMAN DAS

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit brought by Salig Ram Misir, creditor, to recover the amount due from his principal debtor, the suit being brought against Luchhman Das surety. It appears that on the 28 March 1912, a mortgage-deed was executed by Mt. Tulsa Kunwar and Lachhmanji, respondent, acting for himself and guardian of his minor son Dauji, for a sum of Rs. 2,000 under which a house in Benares was mortgaged. The deed stood in the name of Mt Sumitra, wife of Salig Ram, but it is the case of both parties that she was a mere benamidar. On the same date a security bond was executed by Lachhman Das, the present defendant in the suit, as a surety undertaking that if the amount of the mortgage money was not recovered from the property mortgaged under the deed or from the mortgagors, the mortgagee would be entitled to recover the whole of the amount together with the costs and the damages from the personal property of the surety. Under this bond the surety hypothecated certain immovable property.

(2.) Salig Ram brought a suit on the basis of his mortgage for sale of the house against Lachhmanji, Mt. Tulsa Kunwar and the minor Dauji. A defence was put forward on behalf of the minor son that there was no legal necessity for the mortgage of the house which was ancestral joint property. On 22 January, 1916, the Court held in favour of the minor that no legal necessity for the transfer had been established and accordingly declined to enforce the mortgage against the property. As, however, the suit was brought within six years of the mortgage, a simple money decree was passed against the executants Mt. Tulsa Kunwar and Lachhmanji. The decree-holder than proceeded to execute the decree by attaching the very house which had been released from the charge. Objections were raised to the attachment by one Chaturbhuj to the effect that the house did not belong to Lachhmanji at all but belonged to the objector. In support of his claim Chaturbhuj produced a sale-deed of the year 1867 standing in his ancestor's name. The objections were summarily dismissed under Order 21, Rule 58. The house was in due course put up for sale and purchased at auction in two lots for Rs. 900 and Rs. 1,250. aggregating Rs. 2,150, by the decree-holder himself. On 23 April 1917 the auction-sale was confirmed and soon after that Salig Ram obtained possession of the house. Chaturbhuj, on 1 September 1917, instituted a suit for declaration of his title and for possession of the house. This claim was contested by Salig Ram, but was ultimately decreed on 31 July 1918, by the trial Court. Salig Ram in the meantime had made certain new constructions and additions to the house and pleaded that he was entitled to some compensation for the improvements. The Court granted a decree conditional on the payment of an amount to represent the cost of the improvements. Two appeals were preferred from this decree. One by Salig Ram challenging the finding that the property belonged to Chaturbhuj and not Lachhmanji, and the other by Chaturbhuj challenging the amount of the compensation awarded to Salig Ram. These appeals were disposed of on the 4th May 1921, on which date Salig Ram's appeal was dismissed, and the decree of the trial Court declaring Chaturbhuj's title and granting him possession was affirmed. The appeal preferred by Chaturbhuj, however, was allowed in part and the amount of compensation was reduced slightly. The result of the first Court's decree was that during the pendency of the appeal, Salig Ram was dispossessed from the house on 26 December 1918.

(3.) We may mention another proceeding which took place in the meantime. Salig Ram had executed his decree against Mt. Tulsa Kunwar also and had got attached certain ornaments in the house occupied by her. Objections were raised by Mt. Jasoda Kunwar that the articles attached belonged to her exclusively. The Court ordered that the ornaments should be released on condition that security was furnished of their full value. One Gopal Mukhia stood surety and deposited Rs. 1,200 which sum was considered to be the, value of the ornaments, The ornaments were allowed to be taken out of Court by Mt Jasoda Kunwar and Rs. 1,200 deposited as security remained. Ultimately the objection by Mt. Jasoda Kunwar was dismissed summarily and she brought a suit for a declaration that the ornaments actually belonged to her. While this suit was pending, the house was sold in March 1917, in execution of the simple money decree, in favour of Salig Ram. After the execution case had been struck off and the decree satisfied on full payment, Mt. Jasoda Kunwar applied to the Court for permission to withdraw the suit on the ground that it was not necessary to proceed with it. The Court allowed her to withdraw the suit. Later on the surety Gopal Mukkia was allowed to take away the amount of Rs. 1,200 lying in deposit with the Court apparently on the ground that the decree in favour of Salig Ram had been fully satisfied.