CHOTEY LAL Vs. LAIQ SINGH

JUDGEMENT

(1.) This is an execution appeal by the plaintiff decree-holder. The suit was brought for sale on the basis of a mortgage-deed executed by a Hindu father, and a preliminary decree was passed on 13 January 1920, for Rs. 573. The sons of the mortgagor were not parties to the suit. They subsequently brought a suit for a declaration that the debt was without legal necessity and was not binding on the family property. Their suit was decreed on 24 July 1920, the Court holding that though the principal sum was for necessity, it was not proved that there was necessity for the high rate of interest charged. Accordingly it held that the mortgage-debt was good to the extent of Rs. 429-3-0. After this decree the sons were made parties to the final decree in the mortgage suit which was passed on 7 May 1921, for Rs. 429-3-0 only. There was no reference in this final decree to the plaintiff's right to recover the balance of the amount allowed to him under the preliminary decree.

(2.) On 15 April 1924, the plaintiff filed the present application styling it as one under Order 34, Rule 6 praying for a personal decree for the balance of the amount against the mortgagor. This application was contested, and has been dismissed by both the Courts below. Their order has been affirmed by a learned Judge of this Court.

(3.) The effect of the declaratory decree obtained by the sons undoubtedly was to confine the charge on the family property to Rs. 429-3-0 only. The balance of the amount ceased to be a mortgage-debt.