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Allahabad High Court
Bhikhari Das And Anr. vs Dalip Singh And Ors. on 8 March, 1895
Equivalent citations: (1895) ILR 17 All 434
Bench: J Edge, Kt., Banerji


JUDGMENT

John Edge, Kt., C.J. and Banerji, J.

1. This appeal has arisen oat of a suit, for sale under Section 88 of Act No. IV of 1882. A portion of the property mortgaged was, subsequently to the mortgage, sold to one of the defendants. It was the property known as Fatehpur Shamshoi. The Subordinate Judge gave the plaintiff a decree, but he limited his decree by obliging the plaintiff to have recourse to other mortgaged property before selling the property called Fatehpur Shamshoi. He apparently thought that Section 56 of Act No. IV of 1882 applied to this case. That section has no application here. That section merely applies as between the buyer and the seller and does not limit the rights of a prior mortgagee. This case is not one of those provided for by Section 81 of that Act. The right of a mortgagee to bring any portion of the mortgaged property to sale is not curtailed by the mortgagor, subsequently to the mortgage, selling a portion of the mortgaged property to a third person. We are fortified in this opinion by the decision in Lala Dilawar Sahai v Dewan Bolakiram I.L.R. 11 Cal. 258, Indukuri Roma Raju v. Yerramilli Subbarayudu I.L.R. 5 Mad. 387, and Banwari Das v. Muhammad Mashiat I.L.R. 9 All. 690.

2. The Subordinate Judge misunderstood the covenant as to interest. It was a covenant to pay interest at the rate of Rs. 1-12-0 per cent, per mensem and provided for yearly rests, in which case the interest in arrears was to be added to the principal and the aforesaid rate of interest was to be charged on the consolidated sum.

3. We allow this appeal, and give the plaintiff a decree for sale under Section 88 of Act No. IV of 1882, by which the whole, or such portion of the property mortgaged as may be necessary, may be sold. The amount claimed in the plaint as due up to the commencement of the suit is Rs. 7,250. We give the defendants until the 7th of September next to redeem the mortgage of the plaintiff on payment of Rs. 7,250, plus interest thereon at the rate of Rs. 1-12 0 per cent, per mensem from the date of the institution of the suit down to the date of payment within such period, plus the costs of this suit in the Court below and in this appeal in this Court; and if the payment be not made on or before the 7th of September 1895, such interest shall be allowed from the date of the commencement of the suit up to the 7th September 1895. A decree shall be prepared under Section 88 of Act No. IV of 1882.


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