JAGENDRA NATH SINGH Vs. HIRA SAHU

JUDGEMENT

(1.) The facts of this case are given in the referring order dated 15 April 1946.

(2.) One Fateh Bahadur Singh had executed a simple mortgage for Rs. 1700 in favour of Nandan Sahu on 26 May 1911. The mortgagee filed a suit, No. 825 of 1923, against Fateh Bahadur Singh and obtained a preliminary decree on 7 April 1924. A final decree for sale was passed on 24 February 1925, for Rupees 37,525 odd. Jogendra Nath Singh, son of Pateh Bahadur Singh, then filed a suit, No. 77 of 1927, for a declaration that the property included in the mortgage was joint family property, that the mortgage was without legal necessity and that he joint family was not, therefore, bound by the decree or liable for payment of the mortgage debt. During the pendency of that suit the whole of the mortgaged property was sold in execution of the decree in suit No. 325 of 1923 and was purchased by the decree-bolder. The suit of Jogendra Nath Singh was dismissed by the trial Court on 10 April 1928, and the auction sale was thereupon confirmed and the auction purchaser got possession of the property on 28th December 1928.

(3.) Jogendra Nath Singh filed an appeal (First Appeal No. 252 of 1928) in this Court on 21 June 1928. This appeal was allowed on 12 April 1932. The decree of this Court, so far as it is relevant for our purposes, is as follows: It is ordered and decreed that this appeal be allowed, that the decree of the Subordinate Judge of Basti be set aside and that a decree be and it hereby is passed in favour of the plaintiff for a declaration that the decree dated 7 April 1924, passed in suit No. 325 of 1923 by the Court of the Subordinate Judge of Basti is valid for recovery of Re. 1,700 with simple interest thereon at the rate of Rs. 18 per cent, per annum, calculated up to 7 October 1924, the date fixed for payment of the said decree and pendente lite interest as directed in the aforesaid decree upto the date of realisation, that the final decree which was subsequently passed in the said suit on 24 February 1925 is also valid for the amount calculated in the manner stated above and capable of execution by sale of the mortgaged property in suit for satisfaction of that amount, that the aforesaid decrees are invalid as regards interest in excess of the amount which will be arrived at on calculation in the manner already mentioned above and that the auction held on the basis of the said final decree during the pendency of this appeal shall not stand.