PANNALAL PRAMANICK Vs. NARAYAN CHANDRA DUTT

JUDGEMENT

(1.) This is an application by a Defendant puisne mortgagee in this suit by the same Sm. Nirmala Sundari Dasi. She asks for an order on this application to be transferred from the category of a Defendant to that of the Plaintiff in this suit and for consequential amendment of the plaint and she also asks for the reference now pending before the Registrar to be proceeded with for sale of the properties. She makes an alternative prayer in this notice of motion to be given the liberty to proceed with the reference in this suit for having the properties sold for the satisfaction of her claim on her mortgage in pursuance of the decree made in this suit, dated December 29, 1949.

(2.) The facts may be stated briefly. By an indenture of mortgage dated May 19, 1934, the mortgagor Defendant mortgaged premises Nos. 86/1, Cornwallis Street, 7/C, Kirti Mitter Lane, 13/1, Das para, and 31, Golaghat, Dum Dum, in favour of the applicant. This mortgage in favour of the applicant was subject to a number of prior mortgages. The applicant filed her mortgage suit being Suit No. 158 of 1935, and a preliminary mortgage decree was passed in that suit on March 8, 1935. The Registrar in his report made in that suit on August 23, 1935, reported the amounts due to the applicant.

(3.) This suit was filed by a prior mortgagee by the name Panna Lal Pramanick in respect of his mortgage relating to premises Nos. 70, Kirti Mitter Lane, 31, Golaghat, and 13/1, Das Para. The Plaintiff in this suit thereafter applied to this Court for joining the present applicant as a puisne mortgagee as a party to this suit and for final decree for sale of the properties for the benefit of the Plaintiff and the other puisne mortgagee Defendants in this suit. The final decree for sale was made by consent on December 29, 1949, in this suit. It was by an order of December 28, 1949, that the present applicant had been added as a party to this suit and thereafter the aforesaid final decree for sale was made. The relevant provision in the final decree will have to be noticed for determination of the point raised in this application. But before setting them out I must observe that in the form of the decree it is stated that it was a suit for reopening the mortgage transactions dated October 4, 1932, mentioned in the plaint of this suit and the decree made in Suit No. 1094 of 1935, for declaration that the Defendant Narayan Chandra Dutt, a mortgagee, is entitled to Rs. 4,630 under the mortgage dated October 4, 1932, and that the said Defendant Narayan Chandra Dutt was liable for the refund of the sum of Rs. 3,045-1-5. This decree dated December 29, 1949, was a consent decree. Its relevant provisions are: