SUNDERMULL Vs. JOHN CARAPIET GALSTAUN

JUDGEMENT

(1.) This is an appeal from an order made by Lort Williams, J., upon a motion brought pursuant to a notice dated the fifth day of June, 1928 in the course of a suit to enforce a mortgage. It appears that the mortgage security was created in or about 1919 and that a sum of 12 lacs was advanced upon the security.

(2.) The suit in the course of which the order complained of is made was brought by the mortgagee Mr. Galstaun in June 1921 and that, as originally framed, was a suit against defendants 1 and 2-- the parties who had entered into the transaction with him. Defendant 3 was a puisne encumbrancer and at some stage of the suit certain other persons, some of whom were minors were made parties to the proceeding on the theory, that they might claim that they were interested in the mortgaged property being joint members of a Hindu Mitakshara family along with defendants 1 and 2.

(3.) The suit did not come on in the ordinary way for trial because it appears that on 25th March 1925 it was settled on the basis of certain terms scheduled to the consent decree of that date. It was declared with the consent of the parties appearing through their respective counsel that the said terms of adjustment ought to be carried out and the same were ordered and decreed accordingly The whole of the arrangement is given not in the body of the decree but in the schedule, that is to say, the language of the parties themselves is in the schedule Broadly speaking, the arrangement was this that these alleged Mitakshara co-sharers agreed that they had no interest in the mortgaged property, agreed to its being treated as a property which defendants 1 and 2 were entitled to pledge