KRISHNA MOHAN Vs. NRIPENDRA NATH

JUDGEMENT

(1.) This Rule was obtained by defendant No. 3, judgment-debtor No. 3, Krishna Mohan Kundu, against Order No. 256 dated May 25, 1950, passed by Mr. N. Banerjee, Subordinate Judge, Alipur, granting an amendment of a reopened decree in Title Suit (Mortgage) No. 89 of 1928.

(2.) The facts leading up to the present dispute may be stated as follows: The plaintiff who are opposite parties Nos. 1 to 9 instituted Title Suit (Mortgage) No. 89 of 1928 against the petitioner and two other persons who are the mortgagors. The mortgage suit comprised six items of properties. A final decree for sale for a sum of Rs. 88,801-9-3 pies was passed on the 26th of March, 1929. This decree was executed in Title Execution Case No. 76 of 1929. Items Nos: 1 to 4 of the schedule to the plaint in the Mortgage Suit were put up to sale on the 23rd of August, 1929 and were purchased by the decree-holders for, a sum of Rs. 69,000/-. Property No. 5 was also purchased by the decree-holder for Rs. 15,000/- on June 16, 1938. Property No. (J of the schedule to the said Title (Mortgage) Suit was not put up to sale. A sum of Rs. 4801-8-3 pies remained outstanding. The decree-holder auction-purchaser thereafter took possession of items Nos. 1 to 4 on the 6th of June, 1936, and of item No. 5 on the 11th of May, 1940. On the 1st of September, 1940, the Bengal Money Lenders Act came into operation. Thereafter, on the 7th of August 1941, judgment-debtor No. 2, Mohini Mohan Kundu, since deceased, and judgment-debtor No. 3, Krishna Mohan Kundu, made an application for relief under Section 36, Bengal Money Lenders Act. This gave rise to Miscellaneous Case No. 101 of 1941. The Miscellaneous Case was allowed by order No. 225 dated the 28th of September 1942. The order portion reads as follows:

(3.) The parties are in dispute as to whether the possession of the properties purchased by the decree-holder has been restored to the judgment-debtors or not. No finding has been reached by the Subordinate Judge on this point. The Subordinate Judge has found that the instalments directed to be paid have not been paid by the judgment-debtors nor have the municipal rates and taxes been paid by the judgment-debtors.