Two villages having been consecutively mortgaged, the rights and interests of the mortgagors the one first mortgaged were sold. The mortgagee having sued was made recoverable village last J. H. PATTON, Esq., CASE NO. 720 of 1857. www Special Appeal from the decision of Mr. G. L. Martin, Additional BABOO RAJKISHORE SINGH and Others, (Defendants,) versus BHUNJUN ROY, (PLAINTIFF,) AND CHERUNJIBEENARAIN Vakeels of Appellants-Moonshee Ameer Alee and Baboo Jugdanund Vakeels of Respondent, Bhunjun Roy--Baboos Ramapersad Roy and THIS case was admitted to special appeal on the 26th July 1857, under the following certificate recorded by Messrs. J. H. Patton and J. S. Torrens. 66 Plaintiff, special respondent, now before us, received in zurin peshgee the mouza of Tola Singhee; and subsequently another mouza named Surwa was pledged as an additional security, under a deed dated 12th September 1850. This deed provided that, in the event of the zur-peshgee not being recoverable from Tola Singhee, the for recovery of mouza of Surwa should be held to be pledged for the advance with the advance, it interest. After execution of this deed, on a decree against the mortgagors, their rights in Tola Singhee were sold and purchased by the special appellant. On this purchase, the zur-peshgeedar has sued for recovery of the advance and to set aside the sale. The judge having given a decree which alters the decision of the court below, and instead of making both the mouzas liable for sale, as ordered by the principal sudder ameen, directs that Surwa should be sold first, petitioner contends that such decree is opposed to the terms of the deed of 1850, inasmuch as his (petitioner's) purchase could not be set aside or Surwa held liable to sale until the zurpesgheedar had proceeded to recover from Tola Singhee, which, under the judge's orders, is not done. first from the "We admit the special appeal to try whether the judge's decision is opposed to the terms of the ikrarnama." JUDGMENT. The pleader of special appellant admits that there is no condition in the deed, as assumed by the certificate, which obliges the plaintiff in the action to have recourse to the sale of Surwa, subsequent to that of Tola Singhee. All the pleader urges is that, as the deed pledging Surwa is dated subsequent to that which mortgaged Tola Singhee to plaintiff, the condition of previous and subsequent sale must be implied. We however see no ground for this argument, and the judge has given ample reasons for holding the liability of Surwa unaffected by the previous deed. We reject this special appeal, with costs. This decision also applies to case No. 721, admitted on the same ground. That appeal is also rejected, with costs. Special Appeal from the decision of Mr. G. L. Martin, Additional BABOO RAJKISHORE SINGH AND OTHERS, (Defendants,) versus RUKSHA ROY AND ANOTHER, (PLAINTIFFS,) AND CHE- Vakeels of Appellants-Moonshee Ameer Alee and Vakeels of Plaintiffs, Respondents—Baboos Ramapersad Roy and Dwarkanath Mitter. FOR grounds of admission to special appeal, and decision of the As above. Court thereon, see Case No. 720 of this day's date. The question raised in the certificate was whether notice of foreclosure to a mortgagor, who had subsequently absolutely sold to another party, was binding upon the vendee: but no decision was given upon the point, as it was found that the date of sale was after the date of notice. Special Appeal from the decision of Mr. E. Da Costa, Principal MUSST. LUCHMEEPUTTEE, (ONE OF THE DEFENDANTS,) versus BABOO RUGHOONUNDUN AND OTHERS, (PLAINTIFFS,) SPONDENTS. Vakeel of Appellant-Baboo Meherchunder Chowdree. Vakeel of Respondents, Rughoonundun and Huroperkash—Baboo Kishenkishore Ghose. THIS case was admitted to special appeal on the 2nd February 1858, under the following certificate recorded by Messrs. A. Sconce and J. S. Torrens. "The plaintiff in this case, on the 5th February 1853, acquired a conditional mortgage to the extent of 3 annas, out of a 4 annas share belonging to the mortgagor in mouza Busowl. In the following year, plaintiff issued on the mortgagor the usual notice of foreclosure. The exact date of the issue of the notice is not shown to us, but the year of redemption is held to have expired by the 8th July 1854: accordingly plaintiff sues for possession under the foreclosure. "So far as the present application is concerned, it is sufficient to say that the plaintiff's claim is partially opposed by the petitioner, who professes to have purchased 2 annas out of the 4 annas above mentioned, by an absolute sale from the original mortgagor, on the 24th April 1853; and as the principal sudder ameen has held that the sale to petitioner was encumbered with the mortgage, he has given judgment in full for plaintiff to the extent of the 3 annas mortgaged to him. "We cannot assent to the assertion of the petitioner that it was competent to her vendor to alienate the land absolutely to her, irrespective of the previous mortgage made by plaintiff: but, as it is admitted that notice of foreclosure was not served on the peti tioner, we admit the special appeal to try, whether notice of foreclosure, served on the plaintiff, mortgagor, that is, the vendor of the present petitioner, was legally sufficient to bind the petitioner in this suit." JUDGMENT. It appears in this case that the notice of foreclosure was issued on the 11th March, and return made by the nazir on 15th April 1853, so that, as petitioner's deed purports to have been executed only on 24th April 1853, the question raised by this certificate does not arise. We remark that 8th July 1854, cited therein, is the date of the proceeding recording the right of foreclosure, which had previously expired at the end of 12 months from 11th March 1853, and that the loan was only for a month. Petition rejected, with costs. Special Appeal from the decision of Mr. E. Jenkins, Officiating Additional Judge of Tirhoot, dated 8th April 1857, affirming a decree of Mr. J. Weston, Second Principal Sudder Ameen of that district, dated 23rd April 1856. SHEOPROSHUN LAL AND OTHERS, (PLAINTIFFS,) APPELLANTS, versus MUSST. NUBOSAHEE DOOBEYAN AND OTHERS, Vakeel of Appellant-Baboo Taruknath Sein. Vakeels of Respondent, Musst. Nubosahee Doobeyan-Moonshee THIS case was admitted to special appeal on the 11th December 1857, under the following certificate recorded by Messrs. A. Sconce and J. S. Torrens. "This suit was instituted by petitioner to recover rupees 4,439-3, principal and interest, on account of money due on a bond. Special appeal dismissed, as the points recorded in the certificate did not arise on the finding of court. "In the first instance, the principal sudder ameen, rejecting the the lower evidence adduced by defendants (who admitted the execution of the bond) to prove payment of rupees 2,986, decreed for plaintiffs; H but on appeal, the case was remanded by the zillah judge, that the plaintiffs might be called upon to produce their books. "Next, the principal sudder ameen dismissed the suit, as the plaintiffs, on the plea that they had no books to produce, did not produce them, and the judge has confirmed this decision. "The grounds of special appeal are two: first, it is pleaded that it was irregular to dismiss the suit upon the above ground, as the admission made by the defendants with respect to the loan made by plaintiffs, threw on them the onus of proving the payments which they profess to have made; secondly, it is pleaded, that as the whole claim amounted to rupees 4,439-3, and defendants asserted payment of only rupees 2,986, the balance due should have been awarded. "We admit the special appeal to try both points.' JUDGMENT. This special appeal is admitted upon two grounds: first, that as defendants allege payment of part of the debt, they were bound to prove such payment; whereas the judge has held that plaintiffs were bound to produce their books to disclose to the court whether such payments were entered therein, and had dismissed the claim in consequence of their refusal to produce them; and secondly, that, as defendants pleaded only part payment, plaintiffs, petitioners were entitled to a decree for the balance. We find that neither of these points arise on the finding of the lower courts. The principal sudder ameen only dismissed plaintiffs' claim for such amount as the receipts of the defendants shewed them to have paid, and decreed the balance to the plaintiffs. They appealed to the judge; and he observes in his judgment, that defendants had produced receipts and proved them by the evidence of the subscribing witnesses; that the plaintiffs merely met this by denying the authenticity of the receipts, but that such denial unsupported was useless; and as plaintiffs had not produced their books, which the judge for reasons stated by him, inferred they had kept, he held the decision of the lower court to be correct in dismissing the claim so far as covered by the receipts held by the defendants. There is thus a clear finding that defendants' receipts were proved, and this judgment also shows that the onus of proof was thrown on the proper party. It also appears that defendants called upon plaintiffs to produce their books, in order thereby to support the authenticity of the payments alleged by them; and that as plaintiffs did not produce, and the court believed such books to be in existence, the inference derivable from their keeping them back was deemed unfavorable to the plaintiffs. As the onus probandi has been properly placed, and the inference arising from plaintiffs, own acts properly drawn, and the decree |