SETH RADHAKISHAN RAMLAL PALLIWAL vs BABU HAZARILAL

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1944 Supreme(Nagpur) 12

SETH RADHAKISHAN RAMLAL PALLIWAL – Appellant
Versus
BABU HAZARILAL – Respondent

JUDGMENT

1. The following points have been referred to us for decision:

(1) When a prior mortgagee obtains a renewal and sues the mortgagor and mesne incumbrancer on the subsequent mortgage, must the prior mortgage itself be in time (apart from renewal) for the plaintiff to obtain priority over the mesne incumbrancer? (2) In order to decide this, is it necessary to decide whether a subsequent mortgagee is bound by an acknowledgment in favour of a prior mortgagee? If so, is he so bound? (3) Does the Money-lenders Amending Act of 1939 apply to suits instituted from 1st April 1935 to 19th March 1937?

In dealing with the first question we assume that the suit is based on the subsequent mortgage, as in the present case.

2. The facts may be briefly stated as follows. In 1904 certain property was mortgaged to A for a sum that was repayable by instalments, of which the last was payable on 17th May 1916. On 13th May 1924, accounts were made up and the same property was mortgaged for the sum found due, which was repayable by instalments, of which the last was payable in 1944. In the meantime the property had been mortgaged to B in 1915 for a sum repayable after ten years; on 8th June 1928, accou