SUDHENDU NARAYAN DEB Vs. RENUKA BISWAS

JUDGEMENT

(1.) This application for leave to appeal to the Supreme Court under Article 133 of the Constitution is directed against the judgment end order dated 4-12-1973 passed by this Court in F. M. A. No. 624 of 1968, affirming the order passed in Misc. Case No. 39 of 1968. by Sri M. M. Haldar, Subordinate Judge, 3rd Court at Alipore, 24-Parganas.

(2.) In order to appreciate the point at issue, the following facts need be stated:-- That the petitioner is the judgment-debtor No. 2 in the execution case. His father Raja Abhoy Narayan Deb of Assam died in 1941. He. along with other properties left the premises No. 117-A, Rash Behari Avenue, situated on an area of about 1 bigha 6 cottah. It is a three storied building comprising 32 spacious rooms with two out houses. That on or about 15-9-1949, the petitioner and others mortgaged their 2/3 share in the said property to raise a loan of Rs. 27,000/-. The mortgagors were:-- (a) the present petitioner (b) Kumar Surjyendra Narayan Deb (c) Rani Suhasini Debi (d) Nilima Debi: on the death of Rani Suhasini Debi -- her heirs were substituted. The mortgagee was Prakasini Biswas, the predecessor-in-interest of Opposite Parties Nos. 1 (a) to 5. That on 3-3-1961 the mortgagee brought the T. S. No. 17 of 1961, in 3rd Court of Subordinate Judge at Alipore to enforce the above mortgage and got a preliminary decree on July 25, 1962. In the preliminary decree it was directed that 2/3rd share of the decretal dues would be payable to the plaintiff--present Opposite Parties Nos. 1 (a) to 1 (f) and 2, 3 and 4 and the balance l/3rd share to be payable to the plaintiff--present Opposite Party No. 5.

(3.) The Opposite Party No. 8 Kumar Surjyendra Narayan Deb filed F. A. No. 962 of 1964, in this Court against the said preliminary decree on 18th December. 1962. The petitioner's attempt to get stay of further proceeding failed. As a result the final decree was passed on 6-3-1963 though F. A. No. 902 of 1964 was pending. It may however, be noted that the appeal against the preliminary decree was filed on 18-12-1962 and the same was registered as F. A. No. 902 in the year 1964.