Decided on October 14,1900



Bhashyam Aiyangab, J - (1.) The respondent in Appeal Against Order No. 105 of 1902 who is also the respondent in Appeal Against Order No. 109 of 1902 and the appellant in Appeal No. 69 of H900 is the decree-holder in O.S. No. 12 of 1886 which was brought upon a hypothecation bond for Es. 3,000 executed in September 1880. The decree was passed on the 22 November, 1887 for Rs. 6,000 with interest at 18 per cent, per annum and the amount of the decree was recoverable both personally against the mortgagors and by sale of the mortgaged property subject to a prior mortgage in favour of the 8 defendant in that suit whose suit on his prior mortgage was then pending in O.S. No. 8 of 1881 to which the puisne mortgagee, the plaintiff in O.S. No. 12 of 1886, was no party. O.S. No. 8 of 1881 was compromised and the decree in the terms of the compromise was passed on the 80 day of September 1890 for the sum of Rs. 68,300 which was to be recoverable subject to the conditions therein provided by sale of the mortgaged properties. The mortgaged properties were brought to sale in execution of the decree in O.S. No. 8 of 1881 and purchased by the plaintiff therein whose purchase was confirmed on the 3 day of October 1896. He applied for possession under Section 318, Civil Procedure Code on the 2nd day of December 1896 and obtained possession on the 19 day of February 1897. The decree-holder in O.S. No. 12 of 1886 relying upon certain agreements entered into betwen him and the mortgagors subsequent to his decree objected under Section 335, Civil Procedure Code to the delivery of the property to the purchaser in execution of the decree in O.S. No. 8 of 1881 claiming that he was entitled to remain in possession of the property by virtue of such agreements which will be immediately referred to. His objection was overruled on the 5 day of January 1898 and in O.S. No. 41 of 1898 he sought to recover possession of the property from the 2nd defendant therein to whom the property had been conveyed by the decree-holder and purchaser in O.S. No. 8 of 1881. The suit having been dismissed by the decree, dated the 13 day of November 1899, he has preferred to this Court Appeal No. 69 of 1900.
(2.) On the 17 day of December ] 888 the mortgagors--Judgment-debtors in O.S. No. 12 of 18S6, executed a power of attorney (Exhibit IV in A.A.C. No. 105 of 1902) whereby the decree-holder was authorized to receive all the collections of rent made from the mortgaged property (which was a Mitta) by the moniegar of the Mitta and to appropriate the same towards the decree amount after payment of peishcush and establishment charges. It was further stipulated in the power of attorney that the mortgagors were to render all the necessary assistance in the matter of collections being made by the moniegar and that until the decree was liquidated they were not to revoke the power of attorney nor the orders to be issued by them to the rooniegar and the other village officials for carrying out the said arrangement. On the same date, viz., the 17 December 1888, the moniegar wrote to the decree-holder (vide Exhibit XI in A.A.O. No. 105 of 1902) informing him that an order had been received by him from the Mittadars (the mortgagors) that he should remit all the collections made from the Mitta to the decree-holder and that he would accordingly do so without fail.
(3.) On the same day the judgment-debtors (defendants Nos. 1,2, 4 and 5 in O.S. No. 12 of 1886) presented a petition to the Court under Secs.257 and 305, C.P.C. which runs as follows: 1. Our properties in the said suit are now brought forth for sale. If they are sold away we should incur heavy loss. We have requested the plaintiff in the suit to stay the sale. 2. We have also given an Agentnama to plaintiff enabling him to collect all the moneys due from the undermentioned Mitta villages through the moniegar of those Mittas to pay the peishcush and take the balance in satisfaction of his decree amount. 3. Until the whole amount of the decree is satisfied according to the agreement mentioned above we shall not interfere with the money collections of the said Mittas; nor shall we do anything which would cause loss to plaintiff. In collecting moneys, we shall do all manner of help to plaintiff even pecuniarily and we shall not do either expressly or impliedly, anything which is obstructive, unjust or fraudulent. We shall act according to plaintiff's wish j and we shall" not either withdraw or cancel the aforesaid Agentnama until the Whole debt has been satisfied.;

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