Hari Kissen Bhagat v. Seikh Veliat Hossein

In this appeal which arises out of suit brought by the Plaintiff-Appellant to enforce a mortgage bond, the only question raised for determination ??? whether the Court of Appeal below was right in dismissing the suit of the Plaintiff by reason of the purchaser of one of the mortgaged properties from the mortgagor not having been made a party to the suit.

The learned vakil for the Plaintiff-Appellant contends that the suit should not have been dismissed altogether, but the mortgage-debt should have been apportioned between the property purchased by the person who has not been joined as a Defendant and the other mortgaged property. He urges that having regard to the fact that the property purchased by the person who has not been joined as a party has been released by the ??? mortgagee, the mortgage must ??? treated as having been split up and ??? property cannot, strictly speaking ??? considered any longer as property ??? in the mortgage now sought be enforced so as to make him a necessary party within the strict meaning of sec. 85 of the Transfer of Property Act he contention is that, all that the state of facts in this case requires is that the mortgage should be treated as having been split up and the release of one of the mortgaged properties by the mortgagee should be held to have the same effect as if the mortgagee had himself bought it; and if that is done and the mortgage-debt apportioned between that property and the other mortgaged property, that is all that the Defendant-Respondent is entitled to have. And in point of fact that is all that the learned vakil for the Respondent a subsequent purchaser from the mortgagor, really insists upon.

That being so, we think the proper course to take in this case is to set aside the decree of the Court below, and to send back the case to that Court in order that it may dispose of it after apportioning the mortgage-debt in the manner stated above.

We think the parties in this appeal should bear their own costs.

S.C.S

Case remanded.