A JAMES Vs. CHACHAIBAR SINGH

JUDGEMENT

(1.) This is an appeal by defendant 13 in a suit for recovery of Rs. 5879-5-0 which the plaintiffs said they had to deposit under pressure of execution proceedings and which they claimed ought to have been paid by defendants 1 to 12 and 13. In May 1922, one Janki Lal mortgaged his entire jagirdari right in Mauza Lenjhua and his interest in six other villages to Ramkrit Narain. In May 1924 he entered into an agreement with the representatives of defendants 1 to 12 to sell Lenjhua to them, leaving it to them to pay off the mortgage of 1922. The case of the plaintiffs was that defendants 1 to 12 took the plaintiffs in as co-partners for a moiety in the proposed sale and gave them an express assurance and undertaking that defendants 1 to 12 would play their part properly in obtaining the discharge of the mortgage and would see that the plaintiffs did not have to pay more than a moiety of the mortgage debt. On 12 September 1924 Janki executed two kabalas for eight annas each of Mauza Lenjhua, one in favour of the plaintiffs and the other in favour of defendants 1 to 12. Out of the consideration money Rupees 12,083-15-0 was left with each set of vendees to pay in discharge of the mortgage of Ramkrit Narain, Janki representing that these two sums of Rs. 12,083-15-0 each represented all that was due upon the mortgage, the rest having already been paid off by him.

(2.) When the plaintiffs attempted to pay the mortgagee it was discovered that the mortgagee claimed Rs. 1200 more than had been admitted by Janki Lal to his vendees to be due to the mortgagee. In March 1929 defendants 1 to 12 transferred their moiety of Mauza Lenjhua to defendant 13 for Rs. 22,000 which was to be paid by defendant 13 to the mortgagee as the proportionate share of the outstanding mortgage debt. Shortly after this the mortgagee sued to enforce his mortgage, and in March 1930 he obtained a decree for Rs. 54,631-12-6 inclusive of costs. A question had been raised during the trial of the mortgage suit regarding the order in which the mortgaged properties were to be brought to sale and the Court had decided that unless the decretal amount was paid within five months of the date of the preliminary decree, the two sets of vendees of Janki Lal were to be at liberty within one month after the expiry of the said period of five months to deposit in Court to the credit of the mortgagee Rs. 12,083-15-0 besides interest at 12 per cent, with quarterly rests from 12 September 1924, to the date of deposit.

(3.) The Court directed that if such deposits were made, the mortgaged properties were to be sold in the same order as that given in the mortgage bond--I may observe in passing that in this document Mauza Lenjhua figures as item 6. The Court further directed that if such deposits were not made by the two sets of vendees or by any set out of them, then the whole Mauza of Lenjhua or the moiety of the defaulting set of vendees as the case may be should be sold first and the remaining mortgaged properties or a sufficient part thereof be sold in the same order as given in the mortgage bond. Acting in accordance with this part of the mortgage decree, the plaintiffs deposited Rupees 24,476-12-6 on the due date, but defendant 13 did nothing of the kind.