DULHIN KAMLAPATI DEVI Vs. JAGESHWAR DAYAL

JUDGEMENT

(1.) This is an appeal by the plaintiff who brought a suit to enforce a simple mortgage dated 12 February 1930 executed by defendants 1 to 5 and 10 for Rs. 5000 carrying compound interest at 1 per cent, per mensem with yearly rests. Defendants 1 to 10 constitute a joint Mitakshara family of which defendant 1 is the karta. The properties covered by the mortgage bond in suit are (1) sixteen annas Share of Mouza Sahiara, touzi No. 4690; (2) five annas four pies share out of sixteen annas of Mouza Sahiara, touzi No. 9522 and (3) sixteen annas share of Mouza Moap Khurd, touzi No. 11,828. These three together with some other properties had been hypothecated under two earlier simple mortgage bonds dated 25 May 1913 and 18 August 1914 in favour of one Sakhi Chand. He sued on those two mortgage bonds and obtained a preliminary decree for Rs. 9000 on 16th February 1928 which was made final on 27 September 1928.

(2.) The decree was put to execution and the mortgaged properties were sold. It was to set aside that sale that the loan on the mortgage bond in suit was taken. The mortgagors raised further sums by loan and it is not disputed that those sums with the Rs. 5000 borrowed under the bond in suit were deposited in the execution case of Sakhi Ghand with the result that his mortgage decree was satisfied and the execution sale was set aside. In the mortgage suit of Sakhf Chand the present defendant 13 who held a subsequent mortgage dated 1 June 1916 was impleaded as a defendant and he was a party to the mortgage decree and the execution case that followed. His mortgage dated 1 June 1916 comprise two out of the three properties mortgaged under the bond in suit, namely, (1) sixteen annas share in Mouza Sahiara, touzi No. 4690 and (2) sixteen annas share in Mouza Moap Khurd, touzi No, 11,828.

(3.) Defendant 13 brought a suit (No. 6/125 of 1930) in the First Court of Munsif at Arrah to enforce his mortgage, impleading, besides the mortgagors, the present plaintiff as a subsequent transferee. In that suit the plaintiff did not appear and an ex parte preliminary decree was passed on 27 February 1923. The plaintiff made an application under Order 9 Rule 13 for setting aside the ex parte decree but it was dismissed and the order of dismissal was upheld on appeal. The final decree was passed on 7 April 1934. The present suit was filed on 6 September 1934. The plaintiff has asked for a mortgage decree, claiming, a right of subrogation as against defendant 13 in respect of the prior mortgagee Sakhi Chand's decree of 1928. The plaiAtiff has further asked for a declaration that the mortgage decree obtained by defendant 13 in his Suit No. 6/125 of 1930 in the Court of First Munsif at Arrah is ultra vires and inoperative.