LUNGYA BALYA DHANGAR Vs. BANSILAL PUSARAM MAHESARI

JUDGEMENT

(1.) THIS appeal arises out of final decree proceedings in civil Suit No. 11-A of 1938 in the Court of the Second Subordinate Judge, Second Class, Amraoti.

(2.) THE facts of the case are somewhat as follows. The plaintiff (respondent before me) filed this suit on the basis of a mortgage dated 30-1-1924, claiming foreclosure in default of the payment of the mortgage debt. The appellant Lungya Dhangar was impleaded in this suit as defendant 4 as a subsequent purchaser of the fields under the mortgage. The mortgage in suit comprises a house and two fields and defendant 4 Lungya is the subsequent purchaser of these two fields and is in possession thereof. Pending the suit in the trial Court, Lungya filed an application on 28-5-1938 before the Debt Conciliation Board, Murtizapur, (hereinafter called the Board) for conciliation of his debts including the mortgage debt of the plain-tiff-respondent. The proceedings in the suit were not stayed, presumably because no certificate was issued by the Board to the civil Court, with the result that a preliminary decree for foreclosure was passed on 19.7-1938.

(3.) THE trial Court found that defendant 4 Lungya could apply to the Board, that the plaintiff Bansilal was served with a proper notice and that the order of discharge being intra vires, the plaintiff was not entitled to a final decree for foreclosure, in respect of fields in the possession of defendant 4, namely, Lungya. It, therefore, passed a final decree for foreclosure only in respect of the house property, in the hands of the mortgagor