PRANIL KUMAR SETT Vs. KISHORILAL

JUDGEMENT

(1.) This Motion has been taken out by one Pran Kumar Bhattacharaya being the auction-purchaser in respect of the suit property being premises No. 16/B Ramesh Dutta Street, Calcutta (hereinafter referred to as the suit property) for, in substance, setting aside of the report of the Registrar Original Side and also for determination of the amount payable by the defendant no (sic) and/or by the applicant herein, and for other consequential reliefs. The original plaintiff Pranil Kumar Sett, since deceased filed the above suit for enforcement of the mortgage which was created by one Kishorilal Bysack being the original defendant No. 1. On 28th August 1973 preliminary decree was passed. After this suit was filed the original defendant No. 1 had created a puisne mortgage in favour of the defendant No. 2, thus, he was made party to this suit. This Court while passing preliminary decree declared that the amount due to the plaintiff in respect of his mortgage dated 22nd May 1964 on account of principal was a sum of Rs. 24,707 and to grant interest on the said principal sum at the rate of 8 per cent per annum from 22nd May 1964 until realization and a sum Rs. 2550 already received by the plaintiff on account of interest in respect of the said mortgage property. The Court further declared in the preliminary decree that the plaintiff was entitled to a personal decree against the defendant Kishorilal Bysack for the sum of Rs. 2500 with interest thereon, at the rate of 4 per cent per annum from 26th November 1963 up to 11th August 1966. It was further declared that the amount due to the defendant Netai Chand Dhar (being the defendant No. 2) in respect of his mortgage dated 29th July 1966 for principal was a sum of Rs. 5000 and he was entitled to interest on the said principal sum at the rate of 10 per cent per annum from 29th July 1966 until realization. This Court further declared that the plaintiff was also entitled to personal decree against the defendant No. 1 Kishorilal Bysack (since deceased) for the sum or Rs. 1000 with Interest thereon at the rate of 6 per cent per annum from the date hereof until realization. In terms of the preliminary decree the Registrar Original Side of this Court was directed to take an account of the amount paid by the Official Receiver appointed in the suit and after institution of this suit on account of the said claim of Rs. 1000/- of the plaintiff and to give credit to the defendant Kishorilal Bysack for the amount so paid. It was provided amongst others that on payment of the amount due to the plaintiff by the defendant Kishorilal Bysack and Netai Chand Dhar or any of them in the manner prescribed in the Clause 1 (a) and on payment thereof before the said date as may be fixed for such amount as may adjudged due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10 together with such subsequent interest as may be payable under Rule 11 of Order XXXIV of the First Schedule of the Code of Civil Procedure 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgage property being the premises No. 169/B Ramesh Dutta Street, Calcutta by the said period mentioned and all such documents shall be delivered over the said defendants Kishorilal Bysack and Netai Chand Dhar (who are meeting the payment or to such person as the Court may direct) and the plaintiff shall, if so required, recover or retransfer the said property free from the said mortgagee and clear off and from all encumbrances created by the plaintiff or any person claiming under him or any person whom he claims and also free from all liabilities whatsoever arising from the mortgage or this suit. It was further provided in the said decree that on payment of the amount due to the said defendant Netai Chand Dhar by the said defendant Kishorilal Bysack. the mortgage in the manner prescribed in the said Clause 1 (b) and on payment thereafter before such date as may be fixed by such amount as may be adjudged due in respect of such cost of the suit and such costs, charges and expenses as may be payable under rule 10 together with such subsequent interest as may be payable under Rule 11 of Order XXIV of the First Schedule of the Civil Procedure Code 1908. It was further ordered and decreed that in default of payment as aforesaid of the amount due to the plaintiff, the plaintiff being at liberty to apply to the Court for a final decree subject to the Bengal Money Lenders Act 1940 (hereinafter referred to as the said Act).

(2.) Thus, it will appear from the aforeaid preliminary decree that there are two kinds of Decree i) Decree under Order XXXTV, Rule 11 of the Civil Procedure Code 1908 which relates to the mortgage property and ii) Personal decree.

(3.) So far as the decretal dues in relation to mortgage is concerned the same relates to the sum which was adjudged and calculated by the Registrar Original Side of this Court.