TMI Blog1958 (10) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... and the 6th defendant is the second defendant's wife. Defendants 1 to 6 executed an overdraft agreement Ext. A dated 24-10-1947 to the plaintiff Bank for ₹ 1,25,000/-. They also executed a promissory note Ext. B on the same day as collateral security for the loan. An equitable mortgage of the immovable properties described in Schedule A appended to the plaint was also made in favour of the plaintiff, by deposit of title deeds, Ext. D-2 being the memorandum. Items Nos. 9 to 11 in Schedule 8 are described in Schedule B. These belong to defendants 2 and 6. Sometime after the commencement of the transaction, defendants 1 to 6 requested the plaintiff to release the charge over these items on receipt of ₹ 15,400/-. They offered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffs suit is for recovery of a sum of ₹ 1,27,167-8-11 from defendants 1 to 6 and the properties in Schedules A to D. Defendants 1 to 11 contested the suit and their contentions so far as the same are necessary for the decision of these appeals alone need be stated. The 1st defendant contended that the properties described as Item No. 8(a) in Schedule A were not liable for the plaint claim, as title deeds relating to the same were not deposited along with other deeds of title. He further contended that the improvements on the properties as well as the buildings thereon could not be made liable for the plaint claim. Defendants 2 and 6 filed the joint written statement contending that they were liable to pay only a sum of ₹ 15,40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not sustainable and that survey Nos. 27/3 and 4 and 2108/2 were not liable for the plaint claim. Disallowing these claims, a decree was passed allowing the plaintiffs to recover a sum of ₹ 1,18,397-14-9 and interest thereon from 1st April 1949. The decree also directed that the houses in items 1 to 8(a) Schedule A were to by sold last. The 10th defendant has preferred A. S. No. 349/55 from this decree while the plaintiff and the second defendant have filed A. S. Nos. 403 and 411 of 1955 respectively. 2. A. S No. 411 may be considered first. The 2nd defendant has raised two points in this appeal viz: (i) that his share in items 1 and 6 in Schedule A and the building bearing No. 8/367 should also have been exonerated from liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he interest of the 2nd defendant in item 1 of Schedule A and the building bearing No. 8/367 should be sold last. The plaintiff respondent has no serious objection to this course. Subject to this direction, A. S. No. 411 must be dismissed. 3. A. S. No. 349 by the 10th defendant raises only one point viz., whether the building in items 2 and 3 of Schedule C should be exonerated from liability. According to the appellant this blinding was put up by his father-in-law the 3rd defendant who sold the same to him in July 1949 under Ext. I. It was urged that though the title deed of items 2, and 3 in Schedule C was deposited with the plaintiff, the title deed of the building was not so deposited and that the plaintiff could not therefore claim a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this was insufficient to create a charge. The 1st defendant who raised this contention in a vague form had no case that there was any document of title other than the patta in respect of these properties. It was not shown in evidence either that there was any such document of title other than the patta. In these circumstances the court below was not justified in refusing a charge on these properties. 5. Another point raised is that the direction in the decree that the buildings in the various items should be sold last is unsustainable. This direction is not merely unjustified but is also practically unworkable, as it means that the plaintiff should sell the, sites attached to the building but not the building, unless the decree a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollows:-- Where a person lawfully does anything for another person, or delivers anything to him not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of or to restore, the thing so done or delivered. Mulla in commenting on this section observes:-- The word lawfully in this section is not mere surplusage. It must be considered in each individual case whether the person who made the payment had any lawful interest in making it if not, the payment cannot be said to have been made lawfully. 7. The payment made by the plaintiff is of a gratuitous nature and the plaintiff is not therefore entitled to a personal decree against defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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