1. The plaintiff-appellant in this Court is the assignee of a mortgage dated the 5th of March 1903. The defendants Nos. 1-3 are the original mortgagors. Defendant No. 4 is the original mortgagee. Plaintiff claimed to recover the mortgage money by sale of the mortgaged property and in the alternative asked that if the mortgage money could not be recovered from the mortgaged property, that a money decree be passed against the defendant No. 4, Manbhar The defendants-respondents Nos. 1-3 admitted the execution of the deed in suit but pleaded the want of consideration. The defendant No. 4 also put in a written statement in the Court of first instance. The suit was tried in a somewhat summary fashion by the Court of first instance. The sole issue in that Court was whether the bond in suit was executed for consideration. Not withstanding the fact that the execution of the bond was admitted, the Court of first instance held that as the plaintiff had failed to prove that the defendants Nos. 1-3 had executed the bond in suit for consideration, the plaintiff could not recover the mortgage money from the property hypothecated. That Court gave the plaintiff a money decree against Manbhar defendant No. 4.
2. Against that decree Manbhar, defendant No. 4, appealed to the lower appellate Court. The plaintiff did not appeal against the dismissal of his claim against the mortgaged property. In his appeal Manbhar pleaded that the mortgage in suit was a valid mortgage for consideration and that the burden of proving that the consideration money had not been received lay on the defendants Nos. 1-3. The learned Subordinate Judge allowed Manbhar's appeal and dismissed the plaintiff's suit. He held that the plaintiff did not disclose any cause of action against Manbhar that he was simply a pro forma defendant and no relief ought to have been asked for against him so long as it was not decided that the mortgage deed in suit was void for want of consideration.
3. We do not agree with the learned Subordinate Judge upon this point. We think that Manbhar was rightly impleaded and that the plaintiff was entitled to ask for the relief against him if he failed to obtain a decree against the mortgaged property. The Court of first instance was entirely wrong in placing the burden of proof upon the plaintiff to show that the bond in suit had been executed for consideration. From the pleadings the Court of first instance ought to have decreed the plaintiff's suit against the property mortgaged, there being no evidence adduced to prove that consideration had not passed, the burden of proof clearly lying upon the defendants mortgagors who set up the plea that consideration had not passed.
4. We have before us all the necessary materials on which to pass a decree which, in our opinion, the Courts below ought to have passed. Acting, therefore, under the provisions of Order XLI, Rule 33, and setting aside the decrees of the Courts below we decree the plaintiff's suit against defendants Nos. 1-3 for a sum of Rs. 698-7-0 with future interest at the contractual rate and direct that if this sum be not paid within six months from this date, the mortgaged property, or so much of it as will be sufficient to satisfy the decree, be sold. 'We direct the decree to be drawn up in the terms of Order XXXIV, Rule 4. Plaintiff will get his costs in all Courts against the mortgagor's defendants Nos. 1-3. Defendant No. 4 will get his costs in all Courts also from the defendants Nos. 1-3. These costs will include fees on the higher scale.