Judgement

Appeal from a judgment and decree of the Court of the Judicial Commissioner (November 9, 1916) varying a decree of the Subordinate Judge of Amraoti (May 15, 1915).

The suit was brought in April, 1913, by the respondent against the appellant in the following circumstances.

On March 9, 1893, one Laxmansa Balkishnasa mortgaged to the appellant sixteen fields in five different villages by a document which, after reciting that the mortgagor had received Rs. 6000, mortgaged the property above men tioned for that amount and authorized the mortgagee (appellant) to take possession if the money due was not paid by July 9, 1893, and to apply the income towards payment of (1.) cultivation expenses, (2.) Government rent and other charges, (3.) interest at R. 1 per cent, per mensem, and (4.) the balance, if any, towards the principal ; the document also purported to authorize the mortgagee (appel-lant) to sell the property. On October 4, 1896, the said Laxmansa Balkishnasa executed a sale deed of one of the fields comprised in the mortgage to the respondents. In the year 1899 the appellant, the mortgagee, sued in the District Court, East Berar, to recover the sum due on the mortgage with interest, and by a consent decree it was agreed that unless the said Laxmansa Balkishnasa made certain payments within a year, nine fields of the mortgaged pro perty, including the field in which the respondents claimed to be interested, should be foreclosed and given into the appellants possession. On December 17, 1900, the conditions of the said consent decree not having been complied with, the Court ordered " that the defendant (the said Laxmansa Balkishnasa) should stand absolutely debarred and foreclosed of and from all equity of redemption of, in, and to the said mortgaged premises." The appellant did not make the respondents parties to the suit and it was found by both Courts that he was ignorant of their interest. The appellant received possession of the property so foreclosed, including the property purchased by the respondents, on April 14, 1901, and had ever since been in possession, but had kept no accounts of his receipts from and expenditure on it.

The respondents by their plaint claimed to redeem the nine fields which were in the possession of the appellant.

The Subordinate Judge held that the appellant could only redeem the field purchased by them, and that they were entitled to do so upon payment of a proportionate amount of the mortgage money which he assessed at Rs. 571.

The plaintiffs appealed to the Court of the Judicial Commissioners contending that they were entitled to redeem all nine fields; and the defendant filed cross-objections stating that it should have been held that the plaintiffs were bound by the foreclosure decree though they were not parties to it, as the defendant had no notice of their interest.

The Court of the Judicial Commissioners varied the decree of the trial judge and made a decree for redemption of the whole mortgage by the plaintiff on payment by him of Rs. 1979 within six months. The officiating Additional Judicial Commissioner dismissed the cross-objections, holding that it was not material whether the defendant had or had not notice of the plaintiffs purchase. As to the appeal, he said " It seems to me that the plaintiffs were entitled to redeem the mortgage as a whole. They cannot be in a worse position than they would have been if they had been made parties to the foreclosure suit. If they had been arrayed among the defendants then, there is no doubt that they could have redeemed the whole mortgage and Mirza Yadalli Begs failure to join them cannot be allowed to benefit him. The first two plaintiffs however did not seek to redeem all the property mortgaged.....They expressly excluded the five fields mortgaged but not included in the consent decree. Though their claim to redeem cannot be denied, there is no force in the contention that the amount now due must be apportioned between the property c