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1904 DIGILAW 18 (ALL)

Ram Pershad v. Gobindi

1904-02-06

BURKITT, STANLEY

body1904
JUDGMENT : STANLEY, J. 1. The suit out of which this appeal had arisen, was brought by the plaintiffs, who are prior mortgagees, against their mortgagor and puisne encumbrances for sale of the mortgaged property. It appears that the mortgagees instituted an earlier suit for the purpose of realising the amount of their debt, but failed to implead the puisne mortgagees. Consequently the decree obtained in that was not binding on the puisne encumbrances. This was so decided in a suit instituted by the puisne encumbrances against the prior mortgagees for the purpose of having a declaration that the decree was not binding upon them. In consequence of this decree the present suit was instituted by the prior mortgagees against the puisne encumbrances and the mortgagors. The only point which has been raised in argument before us is as to the amount which is properly payable by the puisne mortgagees in order to redeem the property. It is contended on their behalf that they are only liable to pay the amount ascertained to be due in the suit brought against the mortgagor. As a matter of fact, as is admitted, in that suit interest was not allowed at the stipulated rate, but at the rate of 6 per cent per [annum, but no objection was taken by the mortgagees to the decree, and therefore as between them and the mortgagor, the decree is bind ing. The contention now is that for the amount of this decree only the puisne mortgagees are responsible if they seek to redeem. 2. We are of opinion that this contention cannot be enter-tained, and for this reason—the decree against the mortgagor has been found not to be binding upon the puisne mortgagees and therefore, so far as they are concerned, must be put aside. For example, if a larger sum had been awarded under that decree than would be justly payable, the puisne mortgagees in the present suit would have been justified in saying that they are not liable for the excess over the amount they were actually liable for; so likewise if the sum awarded in the earlier decree is not sufficient to satisfy the just demand of the prior mortgagee, the puisne mortgagee cannot complain. We therefore think that the decision of both the lower Courts upon this question was correct. We therefore think that the decision of both the lower Courts upon this question was correct. The puisne mortgagees, if they seek to redeem, must pay the full amount of principal found to be due on the mortgage with interest at the stipulated rate up to the date of payment. We therefore dismiss the appeal with costs. We extend the time of payment up to the 6th of August next.