DEO NARAIN SINGH Vs. PHAGU SINGH

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for redemption of a mortgage dated 22 July, 1867, executed by four brothers and their sons in favour of Ganga Prasad Singh, for Rs. 425. Bajrang, who was the father of the present plaintiffs and who on the findings was alive at the time, was not among the executants of the deed. But his elder brother Lachhman, his father Ram Sahai and three uncles as well as cousins joined in it.

(2.) A suit was brought on the basis of this mortgage deed and a mortgage decree was obtained on 22 August, 1878, against the survivors of the executants. Admittedly Bajrang was not impleaded in this suit. Seven gandas share which belonged to this family was put up at auction on 18 November 1878, and was purchased by the mortgagee himself. Subsequently in 1885 the mortgagee transferred the share purchased by him at auction to the mother of the contesting defendants.

(3.) The sons of Bajrang bring the suit for redemption on the ground that they are not affected by the auction sale because Bajrang, their father, had not been impleaded in the mortgage suit. The Court of first instance dismissed the suit. But on appeal the learned Additional Subordinate Judge allowed the appeal and decreed the suit for redemption in respect of the plaintiff's share in the mortgaged property. That decree has been affirmed by a learned Judge of this Court.