Decided on September 27,1957



- (1.) THE plaintiff instituted a suit in the Court of the Senior Sub-Judge, Simla, on 164-1952, claiming payment of Rs. 44,000/-, together with costs and future interest from the date of institution of the suit till realization, or in default had prayed for the sale of the mortgaged property. It was also prayed, that in case the proceeds of the sale were found to be insufficient to pay the amount due to the plaintiff then the plaintiff should have liberty to apply for a decree for the balance. The Senior Sub-Judge, Simla, passed a preliminary decree in favour of the plaintiff on 10-1-1953, ordering the defendants Nos. 1 to 3 to pay into Court on or before 10-7-1953, a sum of Rs. 46,502/2/6 together with future interest at the rate of 6 per cent per annum on the sum of Rs. 44,000/- from the date of the suit till realisation. The mortgaged property described in the preliminary decree consisted of three-fourths share of five storeyed property No. 74 situate on the Mall Road at simla and one-half share of five storeyed property No. 73/8 situate at Ram Bazar, simla. It was ordered that out of the mortgaged properties one-half of property No. 73/8 and one-half of shop No. 74 would be liable for the repayment of Rs. 24,400/-, and three-fourths of the costs and future interest at 6 per cent per annum on that sum from the date of the suit. Defendants Nos. 4 and 5, Tarsim Chand and Jagan nath, were made liable for this sum to the extent of property No. 73/8 in their possession but they were not to be personally liable for the amount or for the costs of this suit. One-fourth share of the property No. 74 was made liable for the payment of Rs. 18,000/-and one-fourth costs plus future interest on the sum of rs. 18,000/- at the rate of 6 per cent, per annum from the date of the suit till realisation. The rest of the decretal amount was held to be unsecured amount. Defendant No. 6. L. Salig Ram, was held liable to the extent of shop No. 74 purchased by him at a public auction but he was not personally liable for any part of the decretal amount or the costs of the suit. On 24-7-1953, the p laintiff made an application in the Court of the: Senior Sub-Judge, Simla, under Order 34, Rule 5, Civil procedure Code, for making the preliminary decree absolute. It was stated in that application that on 5-6-1953, defendants 4 and 5, Tarsim Chand and Jagan Nath, had paid Rs. 8,000/- to the plaintiff and got released one-half of property No. 73/8 in their favour. The plaintiff had appropriated the said sum of Rs. 8,000/- towards three-fourths of costs and interest on Rs. 24,400/- up to 5-6-1953. As the date of payment of the balance amount had expired and nothing had been paid by defendants Nos. I to 3 and 6, a prayer was made for the passing of the final decree. Defendant No. 6, L. Salig Ram, filed written statement raising several objections which are the subject-matter of the issues. This case has come to this Court by transfer from the court of the Senior Sub-Judge, Simla, and the following issues were framed by falshaw J. on 25-6-1954, and the evidence has been recorded by him : 1. Did Khushi Ram, proprietor of Messrs. Lud-dar Mal Khushi Ram mortgage on 28-12-1941, one-half of the property No. 74, the Mall, simla in favour of Badri Das for a sum of Rs. 9,000/-? 2. Did Badri Das obtain an award dated 4-5-1951. and was it made a rule of the Court on 23-8-1951? 3. Did Badri Das bring the property to sale and was it auctioned on 18-81952, and purchased by the objector? If so, to what effect? 4. Is the plaintiff bound by the decree obtained by Badri Dass? 5. Is the objector not bound by the preliminary decree dated 10-1-1953? 6. Is the alleged sale dated 18-8-1952, not hit by the principle of lis pendens? 7. Arc the objections not barred by the rule of res judicata? 8. Is the objector not bound by the release by the decree-holder of one-half of property No. 73/ 8? 9. Did the plaintiff have knowledge of the first mortgage in favour of badri Das and, if so what is the effect?
(2.) BEFORE examining the arguments advanced by the learned counsel for the parties a brief survey of the earlier history of the case is desirable. Khushi Ram defendant No. 2 and his son Vidya Parkash defendant No. 3 are the proprietors of firm Luddar Mal Khushi Ram. This firm owned one-half share in shop No, 74 on the mall, Simla. Out of the remaining one-half one-fourth share was owned by Shri salig Ram defendant No. 6 and one-fourth nhare by Dr. Mukand Lal. On 29-121941, firm Luddar Mal Khushi Ram mortgaged its one-half share with Badri Das for rs. 9,000/- by means of a registered deed of mortgage Ex. P 1/a. On 5-9-1946 defendant No. 1 opened a cash credit account with the plaintiff up to the limit of rs. 16,000/ -. A promissory note for that amount was executed. The half share of property No. 74 situated on the Mall Simla, and one-half share of the property No. 73/d situate at Ram Bazar, Simla, was equitably mortgaged with the plaintiff by depositing the title deeds. In the meanwhile. Dr Mukand La] had sold his one-fourth share in the property No. 74 to defendant No. 1 and on 30-4-1947, having borrowed a further amount of Rs. 12,000/- from the hank further equitably mortgaged to it one- fourth share of the property No. 74 by depositing the original sale deed dated 234-1947, executed by Dr. Mukand Lal in favour of defendant No. 2, Khushi Ram. On 15-4-1952, the bank had instituted a suit for the payment of Rs. 44,000/- in the court of the Senior Sub-Judge, Simla (Suit No. 36 of 1952),
(3.) ON 9-11-1949, one Mehar Chand obtained a simple money decree against defendants 1 to 3 for the sum of Rs. 3,236-4-0 with interest at the rate of 14 annas per cent per month. In execution of this decree of Mehar Chand, defendant no. 6 Shri Salig Ram purchased the equity of redemption of defendants 1 to 3 on 3-5-1951.;

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