NIRMAL CHANDRA KANJILAL Vs. HRISIKESH BANERJEE

JUDGEMENT

(1.) This is an appeal from an order for final decree for sale of the mortgaged properties mentioned in the plaint and for other incidental reliefs.

(2.) The facts are as follows: The mortgage dates back to the year 1915 having been executed by one Jadunath Kanjilal (father of the Appellants) since deceased, in favour of Mahendranath Banerjee for Rs. 9,000 in respect of premises No. 31/1, Hujurimal Lane, Calcutta and 3, Fordyce Lane, Calcutta. The mortgage remained unpaid and further advances were made by the mortgagee to the said mortgagor and in the year 1924 Jadunath Kanjilal executed another mortgage deed in favour of Mahendranath Banerjee for Rs. 28,000 in respect of the premises already mentioned as well as premises No. 32 Hujurimal Lane, Calcutta. Jadunath Kanjilal died intestate in the year 1930 leaving the Appellants and a widow Satyabati as his heirs and legal representatives. Mahendranath Banerjee died in the year 1936 leaving a will whereby he appointed Hrisikesh Banerjee and Kumudranjan Banerjee as executors and Nalinibala Devi as executrix of the said will. In 1936, probate of the will was granted by the District Judge of 24 -ParganasIn 1938, the mortgage suit was filed by the said two executors and executrix against the Appellants. The Defendants did not enter appearance in the suit or contest the same. In January, 1939, the executrix Nalinibala Devi died and in April 1939 an order was made recording her death and striking out her name from the cause title and register of the suit. On February 2, 1940 a preliminary mortgage decree was passed ex parte in Form No. 5, Appendix D of the First Schedule to the Code of the Civil Procedure, whereby it was, inter alia, referred to the Registrar of this Court to take accounts and make a report. For some reason, which is not clear, the said decree was not filed until May, 28, 1945 and in consequence thereof, no accounts were taken by the Registrar for a very long time. On February 12, 1946, the Registrar made his report whereby he found that a sum of Rs. 73,769 would be due upon the mortgages on November 1, 1946. The said report was filed in this Court on April 17, 1946. The next step to be taken was an application by Kumudranjan Banerjee, one of the Plaintiffs, praying that the Registrar of this Court be directed to take fresh or subsidiary accounts in respect of the mortgages in suit and do calculate the amounts due to the Plaintiffs for principal and interest in accordance with the provisions of the Bengal Money Lenders Act, 1940 and that proper directions be given regarding application of the moneys realised and to be realised by the receiver appointed over the mortgaged properties and that the Registrar do make a fresh report to this Court. The application also included a prayer that it be recorded that Defendants 3 and 4 had attained majority and necessary amendments to the cause title be made. The original notice of motion and the affidavit of service were produced before us. The notice of motion shows that it was addressed to the four brothers (Appellants) as well as to Satyabati Devi, the widow of Jadunath Kanjilal. The affidavit of services shows that the notice of motion was served on the Appellants 1 to 4 as also on Satyabati Devi. The Appellants refused to sign in acknowledgement of receipt of the notice of motion. They did not appear at the hearing of the application and on February 25, 1953, an order was made directing the Registrar to take fresh or subsidiary accounts under the provisions of the Bengal Money Lenders Act. This order was filed on February 25, 1953. On August 16, 1956, an order was made transferring Kumudranjan Banerjee to the category of the Defendants and the cause title and register of the suit were ordered to be amended accordingly. On April 8, 1963, the Registrar after taking fresh accounts found that on November 15, 1963, the sum of Rs. 67,448 would be due from the Defendants to the Plaintiffs.

(3.) The notice of motion in respect of the application from which this appeal arises was taken out on December 20, 1963, by Hrisikesh Banerjee and directed to the four Appellants as well as to Satyabati Devi and Kumudranjan Banerjee.