DORASAMI Vs. VENKATASESHAYYAR
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(1.) The revised findings submitted by the District Judge, in accordance with the order of this Court, dated 13 March 1901, must be accepted, as they are not open to any legal objection; and the case has now to be decided with reference to the question of law raised in the eighth ground which has now been argued. That question is whether the plaintiff, who claims to have two mortgages on one and the same property, can maintain a suit, on the first mortgage alone, for sale of the mortgaged property, such sale being subject to the subsequent mortgage in his own favour.
(2.) The first mortgage, dated 20 December 1880, is a simple mortgage and the balance alleged to be due thereupon is Rs. 220. On the 22 October, 1886 the lands comprised in the simple mortgage, were mortgaged to the plaintiff, with possession, for the sum of Rs. 1,500, and the plaintiff was to enjoy the usufruct in lieu of interest; and there is a covenant in the mortgage bond for re-payment of Rs. 1,500 and redemption of the mortgaged properties, in August 1890.
(3.) In this suit, which was brought in 1898, the plaintiff does not allege that the amount of Rs. 1,500, which, under the usufructuary mortgage bond, became due in August 1890, has been paid to or recovered by him. He still continues to be in possession of the mortgaged property and if under the decree passed in his favour by the lower Appellate Court, the property is to be sold subject to his own usufructuary mortgage, the result will be that the plaintiff's right to redeem the usufructuary mortgage will be extinguished.;
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