Skip to content


Hulasi and ors. Vs. Kalka Prashad and anr. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtAllahabad
Decided On
Judge
Reported in6Ind.Cas.150
AppellantHulasi and ors.
RespondentKalka Prashad and anr.
Excerpt:
mortgage - prior mortgagee suing on one of his several mortgages is not hound to satisfy his claim under a subsequent mortgage out of the surplus sale proceeds. - - this mortgage also affected chamarpura kalan only and the mortgage of the 26th august 1881 was satisfied by this mortgage. they contend that the failure of the plaintiffs-respondents so to apply the sum of rs......this mortgage comprised zamindaris, first, in the village sarai sadhu and, secondly, in the village chamarpura kalan. on the 26th of august 1881, the same mortgagor made a second mortgage in favour of one badri prasad. this mortgage was a mortgage of chamarpura kalan only. a third mortgage was made on the 28th of april 1892 in favour of the appellants. this mortgage also affected chamarpura kalan only and the mortgage of the 26th august 1881 was satisfied by this mortgage. on the 23rd of july 1895, a fourth mortgage was made in favour of the plaintiffs, which included both the villages. on the 19th of february 1896, the appellants purchased the equity of redemption in one village, namely, chamarpura, the consideration being partly the mortgage debt of 1892 and partly some further.....
Judgment:

1. This appeal arises out of a suit brought to enforce a mortgage. The facts are as follows: On the 17th of July 1879, a mortgage was executed by one Shanker Lal, who is now represented by the defendants Nos. 1-4, in favour of one Shib Dayal, who is represented by the plaintiffs. This mortgage comprised zamindaris, first, in the village Sarai Sadhu and, secondly, in the village Chamarpura Kalan. On the 26th of August 1881, the same mortgagor made a second mortgage in favour of one Badri Prasad. This mortgage was a mortgage of Chamarpura Kalan only. A third mortgage was made on the 28th of April 1892 in favour of the appellants. This mortgage also affected Chamarpura Kalan only and the mortgage of the 26th August 1881 was satisfied by this mortgage. On the 23rd of July 1895, a fourth mortgage was made in favour of the plaintiffs, which included both the villages. On the 19th of February 1896, the appellants purchased the equity of redemption in one village, namely, Chamarpura, the consideration being partly the mortgage debt of 1892 and partly some further advances. It appears that a suit was brought on foot of the mortgage of 1879 on the 19th of September 1889. The mortgagee of the mortgage of 1881, which was then subsisting, was not made a party to the suit. The usual decree followed on the 19th September 1819. In 1896 when the decree-holder sought to sell the property, that is to say, the two villages, the appellants objected to the sale of the village Chamarpura claiming under the mortgage of 1892. The objection was allowed and the village of Sarai Sadhu alone was sold. The sale price, however, was sufficient not only to satisfy the decree but to leave a surplus of Rs. 400. This sum of Rs. 400 was paid to the mortgagor or his representatives apparently without any objection on the part of the decree-holder. The present suit was instituted on foot of the mortgage of the 23rd July 1895. A decree has been made for the sale of the village Chamarpura Kalan snbject, however, to the mortgage in favour of the appellants dated the 28th April 1892. The appellants contend that the plaintiffs-respondents might and ought to have applied the sum of Rs. 400 surplus on the sale of the village Sarai Sadhu in the satisfaction of the second mortgage dated the 23rd July 1895, on foot of which the present suit has been instituted. They contend that the failure of the plaintiffs-respondents so to apply the sum of Rs. 400 surplus gives him an equity to have the mortgage debt of the plaintiffs-respondents reduced by this amount. The Court below has held against this contention. We are unable to find any equity in favour of the appellants. So far as their mortgage is concerned, it is not interfered with. The sale of the property that has been decreed is subject to that mortgage. Accordingly so far as the appellants' position as mortgagees is concerned, their security is in tact. In their position as purchasers under the sale-deed of the 19th February 1896, in our opinion, they have no claim whatsoever. We, accordingly, dismiss the appeal with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //