TMI Blog1905 (3) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ansidbar and Kunj Bihari Lal for Rs.7101. The mortgaged property consisted of two villages, Patara and Bhatpura. 3. On October 22, 1889, the same mortgagor executed a second mortgage by conditional sale in favour of Anant Bam and the respondent for Rs. 10,000 and interest. This mortgage comprised Patara and eight other villages, not including Bhatpura. On October 1, 1891, Anant Bam sold his moiety of this mortgage to Gaya Prasad. The situation, therefore, as regards Patara was that the respondent and Kunj Bihari Lal were first mortgagees and the respondent and Gaya Prasad were second mortgagees. 4. On September 17,1893, a suit (No. 123 of 1893) was commenced in the Court of the Subordinate Judge of Mainpuri for foreclosure of the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not seem to be adapted to a suit by a first mortgagee against subsequent incumbrancers and mortgagor. It appears to be a transcript of the form of order given in Section 86 of the Transfer of Property Act, 1882. That form contemplates a suit between one mortgagee and the mortgagor only, and should be treated as a common form not to be literally followed in every suit for foreclosure, but to be adapted to the particular circumstances of each case. The decree does not provide for the exercise by the puisne incumbrancers of their successive rights of redemption or for working out the rights of the parties in the event of any puisne incumbrancer in front of the mortgagor redeeming the mortgaged property so as to make a complete decree. An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mortgagee under Section 74 of the Transfer of Property Act, and was entitled to bring a suit for foreclosure, but that he had not acquired the status of a decree-holder, and that while he was defendant he could not execute the decree as decree-holder. The application was, therefore, by an order dated November 6, 1897, dismissed with costs. 10. Gaya Prasad, therefore, on February 3, 1898, commenced the present suit against Bansidhar, Kunj Bihari Lal, the widow and heir of Chaudhri Raj Kunwar (then deceased), and the representative of Munshi Nawal Kishore (then deceased). The plaint contains a statement of all the material circumstances, but the prayer of it is inartificially framed. In the opinion of their Lordships, however, it was suff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, 1898, but this decree was not framed in a manner to work out the rights of the appellants and respondent, who had become the only parties interested in the property. 14. On appeal by the respondent against this decree, the learned judges in the High Court held that the application of Gaya Prasad to the Subordinate Judge in the execution department for an order for foreclosure absolute was the proper and only application he could have made, and ought to have been granted. In the result they held that the present suit was barred by the provisions of Section 244 of the Civil Procedure Code, and that the plaintiff had mistaken his remedy, and should have appealed against the order of November 6, 1897, instead of instituting a separate sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rasad, as owner of the first mortgage and half owner of the second mortgage, and the respondent as owner of the other moiety of the second mortgage, could have been worked out without additions to the decree which the Court in executing the decree had no power to make. They are, therefore, of opinion that a new decree was required for the purpose, and Section 244 of the Civil Procedure Code was not a bar to the present suit. 16. The learned Counsel for the respondent, no doubt, was conscious of this difficulty, and he contended alternatively that Gaya Prasad might have obtained the relief to which he was entitled in the suit of the second mortgagees (No. 122 of 1893). But Bansidhar and Gaya Prasad were co-plaintiffs in that suit, and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint mentioned, from January 3, 1896, to the date fixed for such payment, together with the costs incurred by the late plaintiff and the appellants in the Court of the Subordinate Judge of Mainpuri, including any future costs (the aggregate amount of such sums to be ascertained by the Court), the appellants shall accept the sum so paid in satisfaction of their said charge on the said property mentioned in the plaint so far as affects the respondent or his share in the said property; but if payment be not made on or before the said day to be fixed by the Court the respondent shall be absolutely debarred of all right to redeem his said share of the said property, and that each party should bear his own costs of the appeal to the High Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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