NANDAN SAHU Vs. FATEH BAHADUR SINGH

JUDGEMENT

(1.) The suit which had given rise to this appeal was filed by the appellants, along with three other persons, who have been impleaded as pro forma respondents to this appeal, against two sets of defendants, praying primarily for a money decree for Rs. 13,848 against defendant first party, Fateh Bahadur Singh, and alternatively, if the Court did not deem it fit to decree the suit against defendant first party, for a decree for the recovery of that amount against defendants second party. The Court below has dismissed the suit against both sets of defendants. Fateh Bahadur Singh, defendant first party, executed a deed of simple mortgage on 6 September 1909 in favour of the defendants second: party, or their predecessors-in-title, hypothecating shares in two villages, Karaili and Semra, in lieu of an advance of Rs. 399. About two years later, on 26 May 1911, Fateh Bahadur executed another deed of simple mortgage in favour of plaintiffs 1 and 2 and Ram Dihal Sahu, father of plaintiffs 3 and 4, and Kalap Nath Sahu, father of plaintiff 5, in lieu of an advance of Rs. 1700 and hypothecated shares in the, two villages which he had already mortgaged to the defendants second party and shares in two other villages, namely Khoriya and Chaukonia. In both these mortgage deeds the time fixed for payment was one year.

(2.) The prior mortgagees instituted Suit No. 329 of 1932 on foot of their mortgage of 6 September 1909 and impleaded as defendants the mortgagor, Fateh Bahadur Singh, as well as the puisne mortgagees, namely the plaintiffs- appellants. The suit was decreed by the trial Court on 4 April 1923 and the decision was affirmed by this Court on 11 January 1927. In the meantime, the puisne mortgagees had also put their mortgage in suit in 1923 and the number of their suit was 325 of 1923. This suit was decreed on 7 April 1924 and a final decree for sale was passed on 24 February 1925. This decree was executed by the puisne mortgagees decree-holders that is, the plaintiffs of the present suit, and the property mortgaged was put up for sale and was purchased by the mortgagees, decree-holders, themselves on 29 June 1927. It may be mentioned that the final decree in their favour was for the recovery of a sum of Rs. 33,476- 14-0 and the property was purchased by them in satisfaction either of the entire decretal amount or of the major portion of it. In para. 5 of the plaint of the suit out of which this appeal arises it is stated that the plaintiffs "entered into possession" of the property "by means of delivery of possession on 28 December 1928." In the meantime, the mortgagor's adopted son, Jogendra Singh, had filed a suit for a declaration that the mortgage deed executed by his father, Fateh Bahadur Singh, on 26 May 1911 and the decree passed on foot of it, as well as the auction sale held in execution of that decree, were not binding on him on the ground that there was no legal necessity for the mortgage. This suit was dismissed by the trial Court on 16 April 1928 and Jogendra Singh filed First Appeal No. 252 of 1928 in this Court. The prior mortgagees, who had obtained a decree on foot of their mortgage in Suit No. 329 of 1922, put their decree into execution about this time and the property, which the present plaintiffs had purchased on 29 June 1927 in execution of their own decree passed on foot of the puisne mortgage, was advertised for sale. In order to avert this sale, the present plaintiffs paid a sum of Rs. 10,025-10-0 to the prior mortgagees on 23 September 1929 and thus freed the property from the charge of the prior encumbrance. On 12 April 1932 this Court allowed the appeal of Jogendra Singh in part and gave him a decree for a declaration that the decree dated 7 April 1924 is valid for recovery of Rs. 1700 and simple interest thereon at the rate of Rs. 18 per cent, per annum calculated up to 7 October 1924, the date fixed for payment by that decree and pendente lite interest, as directed in the aforesaid decree, up to the date of realization.

(3.) It was further declared that: The final decree which was subsequently passed is also valid for the amount calculated in the manner stated above and capable of execution by sale of the mortgaged property for satisfaction of that amount.