KEDAR NATH GOENKA Vs. MUNSHI RAM NARAIN LAL

JUDGEMENT

(1.) IN this case the right of a judgment creditor to bring the properties of a mutt to sale in execution of a money-decree against the Mahanth of the mutt has for more than a quarter of a century been the subject of incessant litigation and a multiplicity of suits in the Courts below, and now comes before this Board for the first time. IN 1898 the Mahanth of the Suja Mutt died and was succeeded by Siaram Das, the judgment-debtor in this case. A few months later in January 1899 the Mahanth of the neighbouring Sersia Mutt, as next friend of his nephew, Mahabir Das, who is said to have been six years old, instituted a suit in the Court of the Subordinate Judge of Monghyr against Siaram Das to establish the minor's right to succeed to the office of Mahanth of the Suja Mutt, and according to his own statement spent a sum far in excess of Rs. 31,000 in prosecuting the suit. One of his first steps after instituting the suit was to apply for the appointment of a receiver, who on his appointment took possession of the mutt properties, with the result that the defendant Siaram Das was left without any funds wherewith to defend the suit. He then applied to a money-lender Baijnath Goenka (the father of the present plaintiff Kedar Nath Goenka) who undertook to advance him a sum of Rs. 20,000 for the purposes of the litigation in consideration of his executing an ekrarnama undertaking to pay one lakh of rupees and to give a lien for that sum on the mutt properties. Not content with this, he subsequently obtained a further ekrarnama giving him a zari-peshgi lease of certain mutt properties for fifteen years in lieu of interest on the above sum.

(2.) THE Subordinate Judge dismissed the minor's suit on the ground that he had no title to succeed to the mutt, and also recorded a finding that the defendant was in. the same case. From this decree both parties appealed to the High Court at Calcutta, While the appeals were pending, the minor plaintiff by his next friend Surjao Das, Mahanth of the Sersia Mutt, and Siaram Das, the defendant, presented a petition to the High Court, stating that the parties had propromised the suit on the terms that they were both to be Mahanths and to be entitled to and in possession of the mutt properties in equal shares, and on the further terms that Surajao Das was to have a first charge on the mutt properties for Rs. 31,000 which he had spent in prosecuting the suit on the plaintiff's behalf, and that, as the Suja and Sersia Mutts had a common founder and the Suja Mutt had been in the habit of subsidising the Sersia Mutt, both parties were to give the Sersia Mutt a lease of the Suja Mutt properties, yielding a net income of Rs. 1,500. About this compromise it is sufficient to say that on this petition the High Court passed an order sanctioning the compromise as beneficial to the minor plaintiff, and ordered and decreed that the parties should abide by it.

(3.) ON the application of Siaram, the judgment-debtor, the Subordinate Judge set aside the sale as not in accordance with the provisions of the Transfer of Property Act as regards' the sale of mortgage property. There was an appeal to the High Court which after referring the question to a full bench on February 4, 1913, reversed the Subordinate Judge's order setting aside the Court-sale, and remanded the case to the lower Court to proceed with the execution of the decree.