AIR 1924 NAGPUR 346

Nagpur High Court

Hon'ble Judge(s): Baker , J

(A) Transfer of Property Act (4 of 1882) , S.74— Prior mortgagee suing on his mortgage without joining puisne mortgagee - Latter not affected-Mortgage - Renewal of old mortgage - Priority over intermediate mortgages. Where a prior mortgagee sues his mortgagor for the sale of the mortgaged property without making the puisne mortgagee a party to the suit, the latter is in no way affected by the suit or its results. The puisne mortgagee has as against the auction-purchaser, whether he is prior mortgagee or a stranger, precisely the same rights as he had collectively against his mortgagor and the prior mortgagee, that is to say, he may sue to redeem the purchaser or thereafter as mortgagor to foreclose, or suffer himself to be redeemed by him. When a mortgagee subsequent to the execution of the mortgage-deed, takes another mortage in renewal of the old mortgage he has priority over incumbrances subsequent to the first deed. (B) Civil P.C. (5 of 1908) , S.34— Rate of interest, a question of fact. The question of the rate of interest is a matter to be decided on the facts of each case. (C) Court-fees Act , S.7(ix)— Claim for surplus profits - No additional fee. ....