SAMARENDRA NATH SINHA Vs. KRISHNA KUMAR NAG

JUDGEMENT

(1.) One Sambhu Charndas and Sannyashi Charan Das owned 2 bighas and 18 cottahs of land with a conal struction standing thereon, situate in Salkiah District Howrah. By a deed of mortgage by conditional sale dated June 2, 1933 the said owners mortgaged the said property to secure repayment of Rs. 2,750 advanced to them by Panchu Gopal Srimani, then a minor through his mother, Prabhavati Dassi as his certificated guardian. The said mortgage inter alia provided that if the mortgage amount was not repaid by the due date i. e. April 14, 1935 the mortgage would be considered as a deed of absolute sale and the mortgagee would be entitled to take possession of the property. On June 18, 1934 the mortgagors assigned their right, title and interest in the said property to one Satchidananda Hazra. As the said mortgagors or the said Hazra failed to pay the said mortgage amount on the due date, the mortgagee filed a suit on July 17. 1945 for enforcement of his rights impleading the two mortgagee and the said Hazra as defendants. In that plaint the mortgagors prayed for a decree for Rs. 5,426-10-6, being the amount then due under the said mortgage and for fixing the time for payment of the said amount. The plaint also contained a prayer that on failure to pay the decretal amount within the time fixed by the Court "the right of the defendants to redeem the mortgage may be annulled and a decree may be passed giving possession of tier' mortgaged property. The mortgagors filed a written statement claiming that they should he permitted to pay the mortgage amount by instalments as provided by the Bengal Money Lenders Act The said Hazra also filed a written statement alleging that he was a bona fide purchaser without notice of the said mortgage. The two mortgagors did not contest the suit and it was only Hazra who contested it contending also that as the loan under the said mortgage was advanced by the guardian of the said Panchu, then a minor, without obtaining sanction of the District Judge, the said mortgage was null and void.

(2.) The Trial Court rejected these contentions and passed a preliminary decree on December 23, 1946. The said decree inter alia provided that mortgage amount due was Rs. 5,426-10-6 and that if the said amount together with costs of the suit was not paid by the defendants within six months from the date of the decree the plaintiff would be at liberty to apply for a final decree. Though the suit was a foreclosure suit the preliminary decree passed by the Trial Court was one under O. 34, R.4(1) of the Code of Civil Procedure in asmuch as it provided that in default of payment as aforesaid the plaintiff would be at liberty to apply to the Court for a final decree for sale and that if the sale proceeds on such sale were not sufficient for payment of the decretal amount the plaintiff would be at liberty to apply for a personal decree against the defendants for the balance. Against the said preliminary decree the said Hazra filed an appeal in the High Court at Calcutta raising two contentions, (1) that the said mortgage was void on account of sanction not having been obtained by the guardian of the mortgagee before advancing the said loan and (2) that he should be permitted to pay the decreta1 amount by instalments. The High Court negatived these contentions and by its judgment and decree dated March 22, 1951 dismissed the said appeal and the suit was sent back to the Trial Court for passing a final decree.

(3.) While the said appeal was pending the respondent obtained a money decree against the said Hazra and commenced execution proceedings against him. An attachment was levied on the said mortgaged property and thereafter on June 23, 1950 the right, title and interest of the said Hazra put up for sale. The respondent was the auction purchaser and the Court confirmed the said sale by an order dated February 15, 1951. The said auction sale was in respect of 1 bigha and 2 cottahs out of the said mortgaged property. According to the respondent he was given possession of the said property on May 3, 1951.