As the suit as also the appeal before the District Judge had been brought in forma pauperis the High Court made an order directing the plaintiff to pay the companyrt fee on the plaint as well as on the memorandum of appeal.
In execution of the decree the lands were sold.
The learned Judge referred this point for decision to a Division Bench.
Appeal from the judgment and decree dated March 4, 1958, of the Patna High Court in Appeal from Appellate Decree No.
He also accepted the plaintiffs case that under the terms of the mortgage bonds the mortgagees were liable to pay the rent and the rent sale having been brought about due to the default of the mortgagor and the mortgagee they companyld number be allowed to take advantage of the sale.
Kirti Kuer.
On appeal, the Additional District Judge, Patna, came to a companytrary companyclusion.
A suit for the arrears of rent was brought by the landlord and a decree obtained.
50/ as his fees by the present appellant within two months from this date for taking accounts as to the amount due to the defendants on the date of the decree.
A preliminary decree for redemption shall be passed in the usual terms.
Accordingly, he set aside the judgment of the Trial Court and passed a preliminary decree for redemption.
The prayers were for a declarations that the purchase was for the benefit of the plaintiff and for redemption of the mortgagees.
of lands which were recorded in Khata 56 and 10.56 acres in Khata 57 in village Sarifabad gave 1.27 acres out of Khata 56 and 8.24 acres out of Khata 57 lands in mortgage to the several defendants by separate mortgage bonds.
It is his case that this purchase enured for the benefit of the mortgagor, that is, the plaintiff, and so the right of redemption of the mortgagees has number been affected.
The mortgagees however defaulted in the payment of rent for some years.
So, according to the learned Judge, the equity of redemption in favour of the plaintiff still subsisted and that he was entitled to redeem the mortgaged property.
CIVIL APPELLATE JURISDICTION Civil Appeal No.241 of 1961.
Kirti Kuer, who according to the plaintiff, were only benamidars of defendants 1 and 2 and other mortgagees.
Against this decree the two defendants appealed to the High Court of Patna.
The purchasers were one Besolal and Mst.
Of these defendants, Chamroo Sao is the purchaser, and Besolal, defendant 2 is the son of the other purchaser Mst.
Part of the remaining land was sold by him and the rest settled by him with the first defendant on Batai terms.
In this view the High Court allowed the appeal, set aside the decree of the first appellate companyrt and restored the decree of the Trial Court.
The plaintiffs case is that under the terms of the mortgage bonds the mortgagees were liable to pay rent to the landlord.
He held that the put chase, though in the name of Besolal and Mst.
Kirti Kuer was really by the, first and the second defendants.
On a companysideration of the evidence, he was of opinion that the liability of rent of 2.67 acres was upon defendant I and that payment of rent of 87 acres which was purchased and 1.76 acres which was taken in ijra, the total being 2.43 acres, was upon defendant 2, that for payment of rent of 3.83 acres was upon the other defendants, and the plaintiff was liable to pay the rent of only about 3.39 acres out of the entire area of 1.67 acres of Khata number 56 and 10.65 acres of Khata number 57.
The suit was companytested by defendants 1 and 2 only.
They denied the allegation that Besolal and Mst.
1335 of 1952.
April 3, 1964.
Kirti Kuer were their benamidars and companytended that the right of redemption has been extinguished by the companyrt sale.
Sarjoo Prasad and B. P. Jha, for the respondents number.
S. Sinha and R.C. Prasad, for the appellants.
The judgment of the Court was delivered by DAS GUPTA, J. This appeal arises out of a suit for re demption of a large number of usufructuary mortgages in favour of the defendants.
1 and 2.
The plaintiff who owned 1.67 acres.
