RAM PARTAP PANDEY Vs. LALU PANDEY

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit instituted by him under the following circumstances:

(2.) One Achhuta Nand executed a mortgage-deed in 1905 in favour of Bhagwant and. Bindeshri. Subsequently, on 29 June 1908, he executed another mortgage- deed in respect of the same property in favour of Asghar. The last named mortgagee brought suit No. 81 of 1917 on foot of his mortgage-deed for sale of the mortgaged property, impleading, among others, Bhagwant and Bindeshri the prior mortgagees. Copy of the plaint of that suit has not been produced. It appears from certain recitals in the judgment that these persons together with some others were described in the plaint as subsequent transferees. In the written statement which they filed they appear to have claimed certain priorities. No copy of the written statement has been produced either. The judgment, which is the only document besides the decree, throwing light on the pleadings of that case, makes vague references to the pleas put forward by the prior mortgagees and to the decision given by the Court on their pleas. It mentions that defendants 32, 34, 36 and 37 allege that they have priorities against the plaintiffs.

(3.) Bindeshri was defendant 32 in that case. It does not clearly appear whether Bhagwant was a party at all. He does not, at any rate, appear to have filed a written statement. We must, therefore, take it that the question of priority was raised by Bindeshri alone. The Court framed issue 8 with reference to the rights claimed by defendants 32, 34, 36 and 37. It ran thus: Have defendants 82, 34, 36 and 37 any priority against the plaintiffs?