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, which they had paid off and that of their own mortgage of 1883.

The circumstances in which the suit was brought are stated at the beginning of the judgment of the Judicial Committee.

The Subordinate Judge made a preliminary sale decree under Order xxxiv., r. 4, by which he decreed the plaintiffs claim with costs and interest at 6 per cent, per annum, provided she paid into Court within two months Rs. 2954 with interest; that in case of such payment the defendant should have a right to pay off the entire decretal amount within four months ; and that in case of default the plaintiff should recover by sale the debt decreed to her. together with the amount which she might have to pay under the earlier part of the decree.

The defendants other than Jag Ram and Net Ram appealed to the High Court, on the ground, amongst others, that the plaintiff was bound to pay off the amount due to them under their mortgage of 1883 before she could sell the property. The plaintiff filed an objection under Order xli., r. 22, contesting her liability to pay the sum of Rs. 2954.

The learned judges (Tudball and Rafique JJ.) said " The plaintiff is a puisne mortgagee seeking to enforce her mortgage, the prior mortgagees in their suit having failed to make her a party. It is the duty of the Court to give the plaintiff the opportunity of occupying the position which she would have occupied if she had been a party to the former suit. In our opinion the defendants-appellants are entitled to what they claim, that is that the plaintiff, before she can put to sale the property in mauza Rasulpur, shall pay off to the defendants-appellants not only the amount allowed by the Court below, but also the amount which would be due to them on the mortgage of June 15, 1883. On behalf of the respondents, cross-objections have been filed contesting the plaintiffs right to a payment of Rs. 2954 due on the old mortgages of 1874 and 1875. What we have said above is sufficient to decide this cross-objection." They added that it was not open to the plaintiff to contend that Rs. 8649, the amount decreed to the defendants in the former litigation, was not the amount due upon the mortgage of 1883, as at the trial she had disputed only her liability to pay and not the amount claimed.

In the result the appeal was allowed and the decree modified by adding thereto that the plaintiff should pay, in addition to the sum of Rs. 2954, the sum of Rs. 8649 due on the mortgage of 1883 ; the period for payment was increased to six months from the date of the decree.

1921. Feb. 17, 18. Narasimham for "the appellant. The appellant not having been made a defendant to the suit in 1910, was entitled in this suit to an unconditional decree for sale. The earlier mortgages, both those of 1874 and 1875 and that of 1883, were