Judgement

Appeal (No. 167 of 1919) from a judgment and decree of the High Court (January 16, 1917) varying a decree of the Subordinate Judge of Agra (February 23, 1915).

The suit was instituted in 1914 by the appellant, Musammat Sukhi, against the respondents, of whom Jag Ram and Net Ram, joined pro forma as respondents 4 and 5, did not defend. She sued as holder of a deed executed on October 14, 1902, by Jag Ram and Net Ram hypothecating to her mauza Rasulpur to secure payment to her of Rs. 1250 per annum which they covenanted to pay. By her plaint she prayed for (a) a declaration that a foreclosure decree under Order xxxiv., obtained in 1910 by Ghulam Safdar Khan and others (respondents 1, 2, and 3) against the Jag Ram and Net Ram upon a mortgage by conditional sale made in 1883, was not binding upon her, as she had not been joined as a defendant in the suit, (b) payment of Rs. 10,500 alleged to be due to her under the hypothecation deed, or in default a sale of the property, and (c) a personal decree for any deficiency.

The respondents 1, 2 and 3, by their written statement relied (inter alia), upon their decree of 1910, and upon the priority of the mortgages of 1874 and 1875, w