SURYANARAYAN BALWANTRAO PULTAMBKER Vs. DAULATRAO BAJIRAO PATIL

JUDGEMENT

(1.) THIS appeal arises out of a suit for foreclosure based on a mortgage dated the 7th February 1925, executed by defendant 1 Laxmanrao in favour of defendant 2 Rukhamabai and her husband Amrutrao, who has since died. The plaintiff is an assignee of the mortgagees' right. His claim was decreed and we are not concerned with that in appeal. The dispute here relates to a claim made by defendant 10, who is a subsequent mortgagee, to have the property in which he is interested, excluded from the scope of the decree on his paying Rs. 1,000 to the plaintiff because of what defendant 10 claims is an adjustment between the plaintiff and himself subsequent to the decree.

(2.) THE plaintiff is an assignee of the mortgagee's right. He obtained them through defendants 2 and 3. The point at issue in this Court relates to the interests of defendants 4 to 9 who are not parties to this appeal. Of these defendants 4 to 7 and defendant 9 purchased parts of the mortgaged property in four lots. Defendant 8 and defendants 11 to 13 are lessees of fields from defendants 6 and 7.

(3.) THE item of property with which we are concerned is the Nagpur house. This was purchased by defendant 9 and his title under that is not questioned. This is the house which was mortgaged to defendant 10 (appellant here) by defendant 1 on 3rd August 1925 Defendant 10 sued on his mortgage and obtained a decree. According to his counsel's statement before us he purchased this house from defendant 9, after the institution of this suit, in satisfaction of this decree, but we were not shown any sale-deed, and as defendant 9 is not before us it is impossible to hold that he has lost his rights. There is not even an affidavit to that effect. Accordingly that must be excluded from consideration.