BANDI SURYA CHANDRA PRAKASARAO Vs. ARTHAMURI SUBBIREDDY AND 5 OTHERS
HIGH COURT OF ANDHRA PRADESH
Bandi Surya Chandra Prakasarao
Arthamuri Subbireddy And 5 Others
Referred Judgements :-
RAJA KISHENDATT RAM. V. RAJA MUMTAZ ALI KHAN
PADMANABH BOMBSHENVI V. KHEMU KOMAR NAIK
KRISHNASWAMI V. THIRUMALAI
MULLA VITTIL SEETHI V. ACHUTAN NAVI
SADASHIV SHIVA SHIVBASAPPA V. GOVIND VIRPAX AMBI
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(1.)This is an appeal from the decision of Chandra Sekhara Sastri, J. with the leave of the learned Judge. The question that arises for determination is where a puisne mortgagee, who was not impleaded in a prior mortgagee's action for sale, has not got preferential right to the surplus of sale proceeds realised by the Court, over the trial claims of a judgment-creditor of the mortgagor. The learned Judge confirmed in Second Appeal the concurrent decision of the Courts below upholding the preferential right of the puisne mortgagee who are the respondents 1 and 2 before us.
(2.)The facts lie in a narrow compass and they are not in dispute. The respondents 1 and 2 (the plaintiffs in this action) were granted a mortgage under a deed dated 10th November, 1955, by the defendants 2 to 5 hereinafter referred to as the mortgagors. The principal amount secured by the mortgage is Rs. 5,000. There was a prior mortgage created by the mortgagors on 28th November, 1953 in favour of one Venkatachalam, who sued thereon without making the subsequent mortgagees parties to the suit. The first item of the mortgaged property was sold pursuant to the final decree for a sum of Rs. 12,200. The purchaser at the execution sale, was no other than one of the puisne mortgagees, who is the 2nd plaintiff herein. After satisfying the prior mortgage, a surplus of Rs. 3,052-90 nP. remained in the custody of the Court. The plaintiffs who are the subsequent mortgagees applied for payment of the surplus amount to them in E.A.No. 200 of 1958 in the prior mortgagee's suit O.S.No. 75 of 1955. At that stage, the 1st defendant who is an unsecured creditor of the mortgagors and who obtained a decree in O.S.No.42 of 1958 attached the surplus sale proceeds to the extent of Rs. 1,032-77 nP. By reason of this intervention, the amount to the tune of the attached sum was retained in Court and the plaintiffs were paid the balance i.e., Rs. 2,019-42 nP. The plaintiffs failed in their petition to have the attachment by the 1st defendant raised. The suit is the sequent to the order of the executing Court declining to dissolve the order of attachment.
(3.)It is unnecessary to set out in detail the conclusions of the Court below. It is sufficient to mention that there are concurrent findings that the mortgagee relied on by the plaintiff's is supported by consideration.
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