Narasinga Patro vs Bhagavan Sabuto

Sadasiva Aiyar, J.—The plaintiff in this Small Cause Suit is a mortgagee who, as defendant in a previous original suit brought by the

mortgagor (the defendant in the present Small Cause Suit) for redemption, was directed to give up possession of the mortgaged land which was in

his enjoyment as usufructuary mortgagee.

In so delivering the possession of the land in execution of that redemption decree to the present defendant, the land was delivered with the crops

thereon (raised by the plaintiff) on the 1st day of December 1908. :

The plaintiff''s present Small Cause Suit is founded on the contention that according to the real rights of the parties as settled by the previous

mortgage-decree, the defendant ought to have been given possession of the land without the standing crops thereon, that the defendant should,

therefore, be treated as having illegally misappropriated.

The standing crops belonging to plaintiff and that plaintiff is, therefore, entitled to recover the value thereof.

I think that all the claims as between a mortgagor and a mortgagee should be settled in the suit for redemption itself either before or after decree

in that suit, that is, all such claims as relate to the possession of the property, the amounts to be paid, the accounts to be taken, the enjoyment of

the property, etc., connected with the reciprocal rights and obligations flowing from the mutual relationship of mortgagor and mortgagee and

decree-holder and judgment-debtor Kashi Pershad v. Bajrang Prasad 30 A. 36 : 4 A.L.J. 763 : A.W.N. (1907) 281, Ram Din v. Bhup Singh 30

A. 225 : A.W.N. (1908) 96 : 5 A.L.J. 192 and Ramalinga v. Samiwppa 13 M. 15.

This separate Small Cause Suit, therefore, by the martgagee, judgment-debtor, for the value of the profits alleged to have been wrongly put into

defendant''s possession in execution of the prior mortgage decree is unsustainable.

The lower Court''s decree is set aside and the suit will stand dismissed. There will be no order as to costs as the petitioner did not raise the point

in the lower Court. The ten rupees (day costs) given to the respondent by my order of 9th December 1913 will be retained by him and need not

be returned.