RAMESH CHANDRA ROY CHOUDHURY Vs. BHUPENDRA BHUSAN GANGULLY

JUDGEMENT

(1.) This is an appeal against a decree of the District Judge of Murshidabad decreeing a suit under Section 36(1), Bengal Money. Lenders Apt which was dismissed by the trial Court. The original decree was passed in Mortgage Suit No. 6 of 1938 of the Court of the Subordinate Judge of Murshidabad, final decree being passed on 23rd August 1938. The properties were sold on 15th March 1939, for Rs. 1000 only. The decree-holder was the purchaser and he took delivery of possession. There were three properties sold. There was a personal decree for the balance, Rs. 2832 odd, on 19th June.

(2.) The lower appellate Court has reopened the decree and passed a decree for Rs. 2,478 plus all costs giving ten instalments from March 1946 to March 1955.

(3.) Of the three properties purchased some portion is in the actual possession of the decree-holder and forms the subject-matter of the prayer for restoration in the suit under Section 36. As regards the rest, there were claim cases which the decree-holder lost. In one case a cosharer succeeded on an allegation that the particular property claimed fell within his allotment. As regards the other claim case the claimant was a purchaser from the mortgagor after the mortgage. The decree-holder has brought a suit to establish his rights in respect of this portion.