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Raghunath Kunwar Vs. Shankar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1914All42; (1914)ILR36All123
AppellantRaghunath Kunwar
RespondentShankar Singh and ors.
Excerpt:
mortgage - prior and puisne incumbrancers--suti for sale by prior incumbrancer without impleading puisne incumbrancer--subsequent suit by puisne incumbrancer for sale--form of decree. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under..........a suit on foot of a mortgage, dated the 5th of september, 1881. it appears that there had been a prior mortgage, dated the 14th of january, 1879. on foot of this prior mortgage a suit was brought and a decree obtained and the property put up to sale some time about the year 1896. to that suit the mortgagee in the mortgage of 1881 was not made a party, and the substantial question in the present appeal is as to the proper order that should now be made. on behalf of the appellant it is contended that the mortgagee in the mortgage of 1881 should be entitled to call upon the purchaser to account for the profits from the year 1896 up to the present time, and that if this was done it would be found that the mortgage of the 14th of january, 1879, had been discharged so far as it affected the.....
Judgment:

Henry Richards, C.J. and Pramada Charan Banerji, J.

1. This and the connected appeal No. 302 of 1911 arise out of a suit on foot of a mortgage, dated the 5th of September, 1881. It appears that there had been a prior mortgage, dated the 14th of January, 1879. On foot of this prior mortgage a suit was brought and a decree obtained and the property put up to sale some time about the year 1896. To that suit the mortgagee in the mortgage of 1881 was not made a party, and the substantial question in the present appeal is as to the proper order that should now be made. On behalf of the appellant it is contended that the mortgagee in the mortgage of 1881 should be entitled to call upon the purchaser to account for the profits from the year 1896 up to the present time, and that if this was done it would be found that the mortgage of the 14th of January, 1879, had been discharged so far as it affected the property which is sought to sell in the present suit. On the other hand, it is contended by the respondents in the present appeal, who are the appellants in the connected appeal, that they are entitled to have an account taken of what would be due upon foot of their mortgage from the date thereof right up to the present time or in the alternative that they should be allowed the amount of the purchase money they paid in the year 1896 and interest thereon. In our opinion the proper order to make in a case of this description is to direct a calculation of what was due upon foot of the prior incumbrance up to the date of the taking over of possession upon sale (or, if that date cannot be ascertained, the date of sale), and the puisne incumbrancer should be declared entitled to redeem upon payment of the amount so ascertained. We are clearly of opinion that the prior incumbrancer ought not to be called upon for an account of the profits which he has received subsequent to the sale. This in principle was the view taken in the case of Dip Narain Singh v. Hira, Singh (1897) I.L.R. 19 All 527. In the case of Phulmani Chaudhrain v. Nageshar Prasad (1911) I.L.R. 33 All. 970 accounts were directed to be taken upon this basis in order to enable the Court to make what it considered a proper decree. See also the issues referred in Manohar Lal V. Ram Babu (1912) I.L.R. All., 323,(330) The real principle upon which in our opinion, the decree should be drawn up is to place the puisne incumbrancer, whom the prior incumbrancer neglected to make a party, in as nearly as possible the position he would have been in if he had been made a party to the suit of the prior incumbrancer. This principle, we think, is carried out in making the order in the form indicated above. In the present case the court below has declared what was the proportionate amount due on account of the prior mortgage (having regard to the value of the property now sought to be sold as compared to the value of the property comprised in the prior mortgage). This we think is correct. It has allowed interest up to the date of the taking of possession by the auction purchaser on the sale in 1896. This we think is quite correct, and we accordingly dismiss the appeal with costs. We extend the time for payment by the plaintiffs to four months from this date, and we direct that, upon such payment being made, the defendants will have a further period of two months for payment of the amount so paid by the plaintiff as well as the amount due on foot of their own mortgage, and to this extent the decree of the court below is varied.


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