SATKARI BANERJEE Vs. SUSHIL KUMAR MUKHERJEE

JUDGEMENT

(1.) This is an appeal by the heirs of the decree, holder against an order dated 31st March 1949 passed by Mr. A. B. Ganguly, learned Sub-ordinate Judge, Asansol, District Burdwan dismissing an execution proceeding started by them.

(2.) The facts are as follows : Ram Kinkar Banerjee, predecessor-in-interest of the appellants instituted a suit for recovery of arrears of royalty of a Colliery known as Chak Sultanpur, for the period 1330 to 1335 B. S. on the basis of a Kabuliyat dated 3rd June 1908 executed by Mr. J. C. Martin. Defendant 1, A K. Patel a firm carrying on business under that name was impleaded on the allegation that the firm had acquired Martin's interest in the leasehold. On 18th May 1923, A. K. Patel executed 2 mortgages respectively in favour of defendant 7 Satyacharan Srimani and the late Jogendra Nath Mukherji. Defendants 3 and 4, Sushil Kumar Mukherji and Sudhir Kumar Mukharji who are two of the sons of Jogendranath Mukharji, were made parties as administrators to the estate of Jogendranath Mukharji (deceased). Defendants 5-6 Kripasankar Worah and Jathasankar Dosa were impleaded as transferees from defendants 3, 4 of the said mortgagee's interest of Jogendranath Mukharji under a conveyance dated 17th April 1928. Defendant 2 Amritlal Chanchani was made a party, being the receiver appointed in mortgage suit No. 336 of 1928. Defendant 8 N. A. Patel was impleaded as the successor-in-interest of A. K. Patel. Defendant 2 N. H. Ojha was made a party as he was the managing agent of the collieries.

(3.) The suit was decreed on 20th April 1981 against all the defendants except defendants 8 and 9, against whom the suit was dismissed. The decree was for Rs. 30,282-11-3 viz. Rs. 27867-14-0 for arrears of rents and Rs. 2414-14-3 as costs. Against the decree 2 appeals were preferred in this Court respectively by defendants 5, 6 and 7. Defendants 3 and 4 or defendants 1 and 2 did not prefer any appeal. Both the appeals filed by defendants 5, 6 and 7 were allowed on the ground that the appellants who were mortgagees of the colliery or their transferees but who had not gone into possession, were not liable for the royalty and the suit was dismissed as against them.