KANNALAL DAMRULAL Vs. BHAGWANDAS TEKCHAND PANDE

JUDGEMENT

(1.) THIS second appeal has been filed by defendants 2 to 4 against the judgment and decree of the learned Additional District Judge, Saugor, reversing the decree of the Court of first instance and passing a preliminary decree of sale in the plaintiffs' favour.

(2.) THE material facts are as follows: One Bhujbalsingh bad executed a mortgage on 7th April 1927 in the plaintiffs' favour for Rs. 1099; that mortgage deed is Ex. P-1. This mortgage comprised a 2 anna patti of mauza Rehatwas and a 2 anna patti of mauza Dhavai (total 3 annas pattis) pargana Airan, tahsil Khurai, district Saugor, together with all the rights and privileges, etc. Subsequently Bhujbalsingh, his brother Hargovind, his mistress Mt. Putro Bai and his nephew (i.e. brother's son) Gyansingh executed a second mortgage in the plaintiffs' favour on 3rd July 1931 in consideration of the amount due on the first mortgage of 1927 and an additional advance of Rs. 2519 for paying off the debts of the creditors, namely, Singhai Ganpatlalji and others. This second mortgage was executed for a total sum of Rs. 4510 of which a sum of Rs. 1991 was found due on the previous mortgage and a sum of Rs. 2519 which was kept with the mortgagees for payment to the creditors. This second mortgage included an 8 anna patti of mauza Rehatwas and a 4 anna patti of mauza Dhawai, (in all 12 annas pattis.) In other words the second mortgage covered much more property as security than the first mortgage. It is admitted that when the second mortgage came to be executed, some property belonging to Bhujbalsingh and Hargovind was already attached in execution of money decree by one Singhai Ganpatlal and it was under the management of the Collector. The property that was attached and placed under the management of the Collector consisted of a 2-anna share of mauza Dhabai and 4-annas if pie share of mauza Rehatwas. The former was bought at the auction on 26th December 1939 by defendant 2 Kannalal (appellant 1 here) and the other share was bought by defendant 3 Anandilal (appellant 2), who retained for himself a 3/4 pie share and transferred his 4-anna share to defendant 4 Niranjansingh, who died during the pendency of this appeal; appellants 3(a) to 3(c) were substituted as his legal representatives.

(3.) THE defendants contested the plaintiffs' claim as based upon the mortgage of 1931 on the ground that the said mortgage was invalid as it was effected pending the management of the Collector and contended that the plaintiff's suit as founded on the second mortgage was not maintainable.