MOHAMMAD ABBAS ALI KHAN Vs. CHOTEY LAL

JUDGEMENT

(1.) This letters Patent appeal arises owing to a difference of opinion between two learned Judges of this Court, with the result that the judgment of the learned Judge was upheld. The question before us has narrowed itself down very much. The two learned Judges heard three appeals in the first instance against the same judgment of the Court below. All the three appeals were dismissed, but there was a difference of opinion as regards Appeal No. 7 of 1.922, which is now before us again in the shape of the Letters Patent appeal.

(2.) The facts, so far as they are involved in the appeal of Abbas Ali (since deceased and now represented by his widow and some), are these: The respondent R. B. Chotey Lal brought Suit No. 219 of 1920 for recovery of a very large sum of money amounting to over a lac of rupees from certain properties and a large number of defendants, numbering 24. The suit was based on the mortgage-deed for Rupees 40,000, dated the 2 September, 1908. The plaintiff contended that he had paid the sum of Rs. 35,000 and odd towards the satisfaction of two prior mortgages: one held by one Sabu Ram Kumar and the other held by Hargulal, but paid off by Ram Kumar and bearing dates, 27 April 1900, and 7 January 1901, and had thereby obtained priority for that sum against three villages Choharpur Bagad, Shahjehanpur and Athain. His case, therefore, was that, so far as this sum of money and the interest thereupon was concerned, this money should come, in the first instance, out of these three villages. He admitted that the Defendants Nos. 2 to 7, among whom was Abbas Ali, were prior mortgagees with respect to the remaining portion of his claim; in other words, he said that in respect of the remaining portion of his claim, the property mortgaged to him should be sold subject to the prior charge of the Defendants Nos. 2 to 7.

(3.) The plaintiff was not concerned with the villages Choharpur Bagad and Shahjehanpar beyond the satisfaction of the sum of Rs. 35,000 and odd and interest. He had, however, a claim for the satisfaction of his remaining portion of the money from the village Athain after the claim of the Defendants Nos. 2 to 7 had been satisfied. It appears further that a sum of Rs. 1,232 is in deposit in Court, being the balance of the sale proceeds of a 10 biswas share in village Muhammadpur Patti Jagir. The plaintiff claims that he is entitled to, recover this sum of money in part satisfaction of his claim. Several defendants raised several points but Abbas Ali contended that as regards" Athain he had a prior charge and that as regards this sum of Rs. 1,232 he was the person who had a prior charge.