DWARKA NATH NANDI Vs. MRITUNJOY PATRA

JUDGEMENT

(1.) The plaintiffs in this suit sue upon a simple mortgage-bond executed in their favour by the defendants on the 5 Assar 1301. The mortgaged properties were three in number. On the 17 Jaisto 1304, the defendants executed a second and independent mortgage-bond in favour of the plaintiffs, this mortgage comprising two out of the three properties covered by the earlier mortgage.

(2.) The Court of first instance held that the plaintiffs were not entitled to an order in the present suit for sale of the two properties comprised in the second mortgage. The learned Munsif, therefore, gave the plaintiffs a decree under which, in default of the money due not being paid within three months from the date of the decree, the plaintiffs were to be entitled to bring, to sale the property not included in the second mortgage.

(3.) Against that decree an appeal was preferred to the District Judge of Bankura, Mr. B. C. Mittra. The judgment of the learned District Judge is in these terms: "This appeal has been urged on two grounds: first, that the Munsif was wrong in holding that the instalments for 1302 and 1303 have been paid by inclusion in a subsequent bond and, secondly, that the order for sale should not have been confined to plot No. 3 to the exclusion of plots Nos. 1 and 2 which are also included in a subsequent mortgage by the defendant to the plaintiffs. On the first point, I see no reason, on examination of the accounts, to differ from the Munsif's finding. On the second point, the authorities are not clear, and I would not go counter to the views adopted by the lower Court. The appeal is dismissed with costs. Cross-appeal not pressed is dismissed."