JUDGMENT

Bennet, Ag. C.J.

1. This is a first appeal by the receiver of the estate of Sri Behariji, an idol in Allahabad City, against a simple mortgage decree. The suit was brought by the plaintiff, Lala Manmohan Das, against three persons originally, defendant 1, Janki Prasad, son of Mukundi Lal, for himself and as mutwalli, manager and karkun of Thakurdwara Sri Behariji Maharaj, (2) Brij Mohan Das, son of Mukandi Lal, and (3) Munnu Lal minor, son of Brij Mohan Das. The original plaint set out that the plaintiff was mortgagee and the mortgagors were defendants 1 to 3. The date of the mortgage was 4th December 1926. The plaint set out further that one Mt. Lalta Bibi had caused a Thakurdwara to be constructed, and for defraying the expenses relating to the construction of the Thakurdwara and other expenses she borrowed from Bisheshar Das and Misri Lal Rupees 3000 under a mortgage deed of 15th July 1895 and constructed the Thakurdwara and installed Sri Behariji, the appellant, therein. Para. 4 set out that for payment of this mortgage of 1895 Mt. Lalta Bibi on 11th July 1907 borrowed Rs. 4000 from another idol called Sri Thakurji. Para. 5 set out that on this mortgage of 1907 a suit No. 141 of 1919 was brought on behalf of Sri Thakurji against Sri Behariji and was decided in favour of the plaintiff and the decision was upheld by this High Court. Para. 6 set out that the property in the plaint, which is No. 14 consisting of four pucca shops in the Allahabad City, was advertised to be sold on 9th December 1926 and that in order to protect the property advertised for sale, defendant 1, Janki Prasad, borrowed a sum of Rs. 14,500 from the plaintiff by hypothecating the property No. 14. Para. 7 states that as the money was used to pay off this debt the amount was recoverable from the mortgaged property as well as from the person of the defendants.

2. Defendants 1 to 3 did not make any written statements. On behalf of the appellant Sri Behariji, an application was made by Kishun Lal and others which is printed on pp. 224 and 224a oil the supplementary record No. 2. This sets out that the description of Janki Prasad as mutwalli of Sri Behariji Maharaj does not show whether Sri Behariji Maharaj was or was not made a party to the suit and that if the plaintiff wanted any decree against Sri Bohariji he should be ordered to implead Sri. Behariji. Previous to this application of 10th November 1932, on 10th October 1932 Kishun Lal and others had applied to the District Judge of Allahabad under Rule 92, Civil P.C. for the removal of Janki Prasad from the position of mutwalli of Sri Behariji on this ground that he had made a claim to the property No. 14 as his own private property by inheritance through his father from Mt. Lalta Bibi and had repudiated his position as mutwalli. Accordingly the Civil Judge ordered on 5th January 1933 that the plaintiff was to decide whether he wished to fix any liability on Sri Behariji and if so, he should amend his "plaint accordingly. In accordance with that order certain amendments were made in the plaint on 5th January 1933. These amendments consisted in adding the idol Sri Behariji as defendant 4 through Mr. R.N. Basu, who is receiver of the property of the idol in the suit u/s 92, Civil P.C. para. 2 of the plaint remained stating that the mortgagors were defendants 1 and 3, and para. 7(A) was added to the plaint as follows:

That Janki Prasad, defendant 1, did not in the mortgage deed sued on write himself as the mutwalli, manager and karkun of the Thakurdwara of Sri Behariji Maharaj installed in the temple situate in Mohalla Sarai Mir Khan, even then as the amount of consideration of the mortgage deed wan paid for the protection of the property of Sri Bebariji Maharaj, defendant 4, and as defendant 1 is the mutwalli, manager and karkun of Sri Behariji Maharaj it is also binding on Sri Behariji Maharaj defendant 4, installed in the temple situate in Mohalla Sarai Mir Khan, City Allahabad (Janki Prasad for self