SARJU KUMAR MUKERJI Vs. BDWARKA PRASAD

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the respondent B. Dwarka Prasad against two defendants, the second of whom, Rai Bahadur Dr. Sarju Kumar Mukerji is the appellant before us. The suit was based on a mortgage bond dated 20 February 1918 executed by defendant 1 Inayat Husain for a sum of Rs. 2,300, principal. The appellant was made a party expressly on the ground of being a subsequent transferee and his status as a prior mortgagee was denied, in the plaint. The appellant obtained a mortgage by conditional sale in his favour from Inayat Husain and others on 18 December 1920 in respect of a large number of properties including a share (now principally in dispute) in the village Palohi.

(2.) There were five other mortgages over some or other of the properties mortgaged to the appellant. These mortgages are given in some detail in the judgment of the Subordinate Judge of Allahabad dated 18 February 1925, and printed at p. 9 of the record. The appellant, having satisfied the decree obtained on the 3 mortgage by one Mahtab Kuar, succeeded to her rights which accrued to Mahtab Kuar under her deed dated 21 August 1900. Mahtab Kuar had before she brought her suit, paid off the first mortgage dated 29 August 1895.

(3.) The appellant, Dr. <JGN>Mukerji</JGN> , brought the suit No. 161 of 1924 in the Court of the Subordinate Judge of Allahabad for foreclosure, on foot of his mortgage. It is the judgment in his case that has been mentioned above. To this suit B. Dwarka Prasad was party, as defendant 21. He claimed priority in respect of his mortgage of 1918. As against Dwarka Prasad Dr. <JGN>Mukerji</JGN> claimed priority because he had paid off (by payment of the decree held by Mahtab Kuar) the mortgage of 1895. In view of these conflicting claims the Subordinate Judge made a decree, the operative portion of which will be found in the judgment at pp. 13 and 14. In para. 5 at p. 14. he gave the then defendant 21, Dwarka Prasad, an opportunity to redeem two earlier mortgages namely of 1895 and 1896 and fixed a date for the purpose. The Judge, further, said that if Dwarka Prasad failed to pay off the earlier mortgages, he should be debarred from all rights to redeem those mortgages and the plaintiff's right to fore-close his mortgage would come into play. It was, however, aided that the right of foreclosure would not affect the mortgage of Dwarka Prasad bearing the date 1918 and that mortgage would remain enforcible later on, but would be subject "to the shields of the mortgages of 1895 and 1896." In this case we are not concerned with the mortgage of 1896. The mortgagee is not a party.