- (1.) In this case Jaideb Panda, Mani Panda, and Mukteswar Panda, borrowed, from Ramnarayan Bhagat and Gopaliram Bhagat on the 9th January 1862, the sum of Rs. 10,000, on the security of a simple mortgage of a two-anna share of four talooks, including one called Kalinagha. In the year 1863, Ramnarayan and Gopaliram obtained a simple money-decree against the Pandas, and attached their share in all the four talooks. They did not, however, proceed to a sale. On the 2nd July 1864, Bharat Lal Bhagat advanced a sum of Rs. 2,000 upon a simple mortgage of the same share of the single Talook Kalinagha, which money was immediately handed to Ramnarayan and Gopaliram, in satisfaction of another advance which they had made to the Pandas. It has been found by the lower Court, and is not now disputed, that this advance was procured through the agency of Ramnarayan, and that Ramnarayan was guilty of fraud, in that he did not inform Bharat Lal of his own prior mortgage upon the same property. Subsequently, Bharat Lal obtained a simple money-decree for his debt, and under that decree he attached the share of Talook Kalinagha comprised in his mortgage, and this share was brought to sale on the 18th June 1866, when Bharat Lal purchased the property himself for Rs. 100. Before the sale, Ramnarayan and Gopaliram gave notice of their claim to a mortgage on the property, and Bharat Lal appears to have admitted in the Court below that, in consequence, he purchased the property for about one-fortieth of its full value. Ramnarayan and Gopaliram have now brought a suit against the Pandas, against Bharat Lal, and against other persons who hold mortgages of one or other of the talooks subsequent to that of the plaintiffs, and who have obtained decrees and caused the two-anna share of those talooks belonging to the Pandas to be sold in satisfaction of their decrees. The object of the suit was stated to be to declare the plaintiffs' mortgage lien, and to obtain an order for the sale of the two-anna share of three out of the four talooks including Kalinagha.
(2.) One objection taken before the Principal Sudder Ameen was, that the two-anna share which was mortgaged by the Pandas to the plaintiffs, was not a two-anna share of each talook, but a half-anna share of each talook, and that these four half anna shares being added together, made up the two-anna, share, which the Pandas mortgaged. The Principal Sudder Ameen of course, overruled this objection: and, as it has been again raised on appeal we may say at once that we cannot look upon it as otherwise than absurd.
(3.) Another objection taken was, that the plaintiffs, having already sued upon their mortgage bond and obtained a money-decree, could not, having regard to the provisions of section 7 of the Code of Civil Procedure, bring another suit to enforce their lien. This objection the Principal Sudder Ameen also overruled.;