AMAR NATH Vs. BANKEY BEHARI

JUDGEMENT

(1.) This is an appeal against a final decree in a mortgage suit for Rs. 53,725/-.

(2.) The relevant facts are that a preliminary decree in a mortgage suit was passed in favour of the plaintiff, Bankey Behari, who was then a minor whose suit had been instituted and prosecuted through two persons who had been appointed as his guardians by the District Judge, Delhi. The preliminary decree fixed a period of three months for payment of the decretal amount and this was due to expire on 15th March 1948. The amount was not paid within the specified period and an application was filed on behalf of the minor plaintiff for the passing of a final decree on the 8th of April 1948.

(3.) In the meantime, however, one of the defendants in the suit, a son of the original mortgagor, had instituted a suit challenging the mortgage and on the 23rd of March 1948 a temporary injunction was granted to the plaintiff restraining the principal defendant i.e. the minor decree holder in this case from taking any step under the preliminary decree in the mortgage suit pending the decision of the suit. Although the order granting this temporary injunction contained a direction that it should be communicated to the Court seized of the mortgage suit this does not appear to have been done before the 10th May 1948 when counsel for the parties were present in connection with the application for the passing of the final decree, and when a proclamation was ordered to be issued and the case was ordered to be fixed for 3rd of June 1948. On that date the record shows that an application was filed on behalf of Prem Nath, the plaintiff in the suit who had obtained the temporary injunction, prying for stay of the proceedings on the ground that the temporary injunction had been issued to the decree holder not to get a final decree passed. The case was adjourned to the 3rd of July 1948 when an order was passed to the effect that the applicant was absent and that his application should be consigned to the record room in default. By that time it is clear that both the decree holder and the Court were aware of the existence of the injunction.