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Lachmi Prasad and ors. Vs. Gokul and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in66Ind.Cas.206
AppellantLachmi Prasad and ors.
RespondentGokul and ors.
Excerpt:
mortgage - several mortgages of one estate--share in each mortgage specified---transaction, whether one or several--redemption. - - 8. on the face of it, this decision is clearly erroneous......as subsequent mortgagees that they claimed their right to redeem this mortgage.5. according to the deed executed on the 25th of may 1907 a loan of rs. 13,350 was advanced to the mortgagors by nine persons. the share of each of these joint mortgagees in the mortgage-money is set out in a schedule attached to the deed. the security which the mortgagors offered for the loan was a share in a village which amounted to three annas ten pies and out of this share specific portions were made security in favour of each of the nine mortgagees whose names are mentioned in the deed.6. it was expressly provided in the mortgage-deed that when the mortgagors came to redeem, the mortgage-money should be paid in a lump sum and all redemption proceedings should be taken at once.7. the learned subordinate.....
Judgment:

1. This very ancient appeal has tome up before us today after having been in the Court for 4 1/2 years.

2. The matter involved is a very simple one and the decision of the appeal need not occupy us very long.

3. The appellants here were plaintiffs in the Court below and the suit they brought was for redemption of a mortgage executed on the 25th of May 1907, That mortgage was executed by two persons, Babu Nandan Pat and his brother's wife. Musammat Janki.

4. It is admitted that the plaintiffs in the present suit are subsequent mortgagees of the same property holding from the same mortgagors, and it was in their character as subsequent mortgagees that they claimed their right to redeem this mortgage.

5. According to the deed executed on the 25th of May 1907 a loan of Rs. 13,350 was advanced to the mortgagors by nine persons. The share of each of these joint mortgagees in the mortgage-money is set out in a schedule attached to the deed. The security which the mortgagors offered for the loan was a share in a village which amounted to three annas ten pies and out of this share specific portions were made security in favour of each of the nine mortgagees whose names are mentioned in the deed.

6. It was expressly provided in the mortgage-deed that when the mortgagors came to redeem, the mortgage-money should be paid in a lump sum and all redemption proceedings should be taken at once.

7. The learned Subordinate Judge in this case has come to the conclusion that the Suit as framed was not maintainable. His view of the transaction dated the 25th of May 1907 is, that it amounts to nine separate mortgages and that one suit for the redemption of all these mortgages is not maintainable.

8. On the face of it, this decision is clearly erroneous. There was a loan advanced by nine separate mortgagees in specific shares, and we know of no impediment in law to the redemption of such a mortgage by one suit framed in the manner in which the present suit was framed. The decree of the Court below cannot stand and must be reversed.

9. We allow the appeal, set aside the decree of the Court below and send back the case to the Subordinate Judge of Gorakhpur for decision on the merits. It is to be hoped that, after all this enormous delay, this case will be brought there to a speedy conclusion.

10. The decree of the Court below is so obviously wrong that whatever the result in that Court may be, the plaintiffs-appellants are entitled to have their costs here, including fees of the higher scale.


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