ZAINUDDIN HOSSAIN MIRZA Vs. SATYENDRA NATH BOSE

JUDGEMENT

(1.) One Kumar Pramatha Nath Roy advanced 5 loans to the predeceessors-in-interest of the appellants and the opposite parties 1 to 5 before the Claims Officer on the mortgage of Khagra Estate which was jointly owned by them. Out of the said mortgages, the appellants predecessors-in-interest executed 3 mortgages, Exs. 1-B, 1-C, and 1-D dated September 30, 1927, June 30, 1932, and June 23, 1935, respectively. The said Kumar Pramalha Nath Roy filed Title Mortgage Suit No. 3/13 of 1937 in the Court of the Subordinate Judge, Dinajpur, to enforce the mortgages and obtained a decree therein. The mortgagee and some of the mortgagors filed appeals in the Dacca High Court against the said decree. On August 18, 1919, by a common judgment a mortgage decree was made by the High Court in favour of the mortgagee whereunder the appellants made liable to pay a sum of Rs. 10,27,594-9-6. Subsequently the said Estate was notified under S. 3 of the Bihar Land Reforms Act. 1950, hereinafter called the Act. Thereafter, on October 27, 1952, the mortgagee filed a petition under S. 14 (1) of the Act in the Court of the Subordinate Judge. Claims Officer, Bhagalpur Division., Purnea Camp, setting up his claim to the amount due to him from the appellants in terms of S. 16 of the Act. To that petition he made the legal representatives of the original mortgagors of all the five mortgages as parties. Opposite parties 6 to 12 are the appellants, who represent the mortgagors under Exs. 1-B, 1-C and 1-D; and opposite parties 1 to 5 represent the mortgagors under other mortgages with which we are not now concerned Respondents 1 to 5, though they filed a written-statement, remained ex parte. Respondents 6 to 12 contested the petition. They not only questioned the correctness of the amount claimed due from them but also pleaded that the claim under the mortgages was barred by limitation.

(2.) The learned Subordinate Judge held that the claimant had proved his claim ex parte against the opposite parties Nos. 1 to 5; so far as the appellants were concerned he held that a sum of Rs. 8,50,253 towards principal and Rs. 1,17,625 towards interest were due from them under Exs. 1-B, 1-C and 1-D. But he held that the claim in respect of the said 3 mortgages was barred by limitation. In that view, he dismissed the claim so far as opposite parties 6 to 12 were concerned and allowed it against opposite parties 1 to 5. Kumar Pramatha Nath Roy, i.e., the claimant, and the Trustees of Kumar Pramatha Nath Roy Public Charitable Trust - presumably the Trust was created by the said Roy in respect of the mortgages - preferred an appeal, Claim Appeal No. 61 of 1956, to the High Court of Judicature at Patna, which was the Board appointed under S. 17 of the Act and to which appeal lay against an order of the Claims Officer under the Act. The High Court, on a construction of the pleadings, came to the conclusion that the claim was based on the mortgage decree of the Pakistan High Court and, therefore, it was within time under Art. 117 of the Limitation Act. As regards the amount claimed, observing that the learned counsel for the parties had not challenged the correctness of the finding of the learned Claims Officer so far as the amount payable to the claimant was concerned it affirmed the amount declared by the said Officer as due from the appellants.

(3.) This appeal is filed against that order by the opposite parties 6 to 12 after obtaining the special leave of this Court. We are not concerned in this appeal with the rights of opposite parties 1 to 5 as they are not parties in this appeal.