RAM SARUP Vs. RAM RICHTPAL

JUDGEMENT

(1.) This appeal arises out of a suit to recover the money due on a simple mortgage, dated 11 May 1910, executed by Husain Khan and Nawab Khan in favour of Koore Mal and Tulshi Ram as security for a sum of Rs. 800. Defendants 1 to 8 are heirs of the mortgagors. Plaintiffs 1 to 6 are heirs of the mortgagees. Bhup Singh, original defendant 11, was a subsequent mortgagee, who died during the pendency of the suit and whose heirs are now upon the record as defendants 11 to 14. Defendant 15 Chiranji Lal, was a subsequent purchaser. The suit was contested by Bhup Singh and Chiranji Lal mainly on the ground that the mortgaged property situated in the town of Gulauthi is not liable to sale, and that Bhup Singh and Chiranji Lal had discharged a decree obtained on a prior mortgage, and therefore had priority to the extent of the amount paid by them in discharging the prior mortgage. The trial Court repelled the defendants contentions and decreed the claim in full.

(2.) The lower appellate Court gave effect to the contention of Bhup Singh's representatives to the effect that they had priority to the extent of Rs. 3,063-9-0 which Bhup Singh had paid in satisfaction of the decree obtained by Faqir Chand on the basis of a mortgage dated 29 March 1901. It may be mentioned that the appeal of Chiranji Lal abated in the Court below as he died in November 1926, and no representatives had been brought upon the record within the prescribed period. The Court below, therefore, only had to consider the rights of Bhup Singh's representatives, and we also must leave out of account the claim made by Chiranji Lal. It has been found as a fact by the Court below that when Faqir Chand obtained his decree on the basis of his mortgage, dated 29 March 1904, the decretal amount was paid off by Bhup Singh and Chiranji Lal to the extent of Rs. 3,063-9-0 and Rs. 1,000-0-0 respectively, and thus the mortgage was redeemed in full.

(3.) The Court below held that Bhup Singh was entitled to priority to the extant of the sum which he had paid for the redemption of the prior mortgage together with interest at 6 per cent from the date of payment. The learned Subordinate Judge passed a decree allowing the plaintiffs claim for Rs. 2,000 with costs and interest. He further directed that after the final decree is passed, first the property situated in the village of Faizabad be put up to sale and if its sale proceeds be sufficient to satisfy the amount of the decree, the other property of the town of Gulauthi should not be put to sale. But in case the property of the village of Faizabad be not sufficient to satisfy the decree, then he directed that the entire property of the town of Gulauthi, which was mortgaged in the mortgage of 29 March 1904, would be put to sale, and out of the entire sale proceeds of both the properties of Gulauthi and Faizabad the amount of Rs. 3,665-13-6 will first go to the defendants 11 to 14 and the remainder will go to satisfy the decree, and the surplus, if any, would go to the other defendants. It must be explained here that in the earlier mortgage of 29 March 1901, the whole 44 sihams of Gulauthi had been mortgaged. In the mortgage, which is the basis of the present suit, only 23 sihams out of the 44 had been mortgaged together with 23 sihams out of 44 in mauza Faizabad.