RAM KISHORE GIR Vs. SURAJDEO PERSHAD

JUDGEMENT

(1.) On the 8 August 1893, the defendant Babu Dasrathi Singh executed a simple mortgage in favour of the plaintiffs which contained an unconditional promise to pay the amount covered by the bond with interest on the 30 Bhado 1303, that is to say, the end of the Fusli year which would correspond with 1896. A certain share of a zemindari was hypothecated as collateral security. There was, however, no express covenant by the mortgagor to pay to the mortgagees any amount that should not be recovered by the sale of the mortgaged property. The mortgagees instituted a suit on the mortgage on the 26 February 1899, that is to say, within six years of the expiry of the stipulated period of payment. They made the mortgagor and his son parties to the suit. In it, they asked for a decree for sale of the mortgaged property and if the sale-proceeds of the mortgaged property were insufficient to cover the decretal amount, they asked that other properties of the mortgagor, Dasrathi Singh, might be made liable. A decree was passed for sale of the mortgaged property under Section 88 of the Transfer of Property Act. The mortgaged property was sold and the sale-proceeds were insufficient to satisfy the entire mortgage debt with interest and costs. The mortgagees then applied for an order under Section 90 of the Transfer of Property Act. The original mortgagor was then alive and the plaintiffs ought to have asked for an order under Section 90 against him alone as prayed for in the original plaint. They put in, however, in their petition the names of both the mortgagor and his son, the defendant No. 2. Either during the pendency of this proceeding or shortly after the decision of the first Court, the mortgagor died and the second defendant, his son, was the survivor under the Mitakshara Law by which the parties were governed.

(2.) The Subordinate Judge in whose Court the application under Section 90 was presented came to the conclusion that no decree under Section 90 of the Transfer of Property Act could be made, inasmuch as there was no express covenant in the mortgage for the mortgagor to pay the balance of the mortgage-debt, if the sale-proceeds were insufficient to satisfy the mortgage-debt. The application was accordingly dismissed. The mortgagees appealed from the order of the Subordinate Judge. The District Judge upheld the decision of the Subordinate Judge. In appeal before the District Judge, the only person who was respondent was the son, the second defendant.

(3.) A second appeal has been preferred to this Court from the decision of the learned District Judge.