LALA MATHU MAL Vs. MUSAMMAT DURGA KUNWAR

JUDGEMENT

(1.) This is an appeal from a decree, dated the 27th January, 1916, of the High Court at Allahabad, which modified a decree, dated the 8th July, 1914, of the Additional Subordinate Judge of Aligarh.

(2.) In the suit in which this appeal has arisen, the appellants hero or those whom they represent were defendants, and the plaintiff was Musammat Durga Kunwar, who was the respondent to this appeal but is now dead ; her personal representative is now the respondent. The suit was brought on the 8th July, 1909, by Musammat Durga Kunwar to obtain a decree for the sale of certain immovable property within the jurisdiction of the Court of the Subordinate Judge, and was based upon a mortgage of the property dated the 12th June, 1879, of which she became the assignee on the 21st May, 1909, by an assignment from the representatives of one Murli Dhar, to whom the mortgage of the 12th June, 1879, had been granted; his mortgage was the second mortgage on the property. The property had been mortgaged on the 19th February, 1872, to the pre-decessors-in-title of the present appellants for -Rs. 3,750 with compound interest at fifteen per centum per annum with yearly rests.

(3.) On the 6th February, 1884, the first mortgagees brought a suit for sale under the Transfer of Property Act, 1882, on their mortgage, but did not make Murli Dhar, the second mortgagee, a party to their suit. On the 28th February, 1884, the first mortgagees obtained a decree in their suit for Rs. 9,342, annas 12, for principal and interest due on this mortgage at the date of their suit, for Rs. 29, annas 13, pies 7, in respect of interest from the date of their suit to the date of their decree, and for, further interest at the rate of six per centum per annum on the decretal amount until payment, and for costs. By the decree the mortgaged property should in default of payment be sold to realise the amount decreed. An order for sale was made and the property was sold on the 20th March, 1890, by public auction and was purchased by the first mortgagees for Rs. 13,702, annas 6, pies 3, the amount due under the said decree of the 28th February, 1884. Formal possession was given to the purchasers on the 15th August, 1890, but they did not obtain actual possession until the end of 1895.