SEKANDAR ALI Vs. JOY CHAND SERAOGI

JUDGEMENT

(1.) This rule is directed against an order of the learned Subordinate Judge of Murshidabad rejecting an application for amendment of a plaint. As originally filed on 28th August 1915, the plaint asked for a declaration of title to certain properties and for redemption of mortgage as regards certain other properties and for delivery of khas possession of all these properties. For an appreciation of the nature of the alteration sought to be made by the amendment which was prayed for but rejected, it is necessary to mention certain facts which led up to this present litigation.

(2.) All the properties in suit belonged originally to two persons, Eakub and Ebrahim. On 20th March 1923 they executed a karbarnama charging the properties of schedule kha of the plaint which included four items out of the ka schedule properties, in favour of opposite party 1 and the predecessor of the opposite parties 2 to 5. On 28th June 1926, one of these persons viz., Ebrahim executed a mortgage bond in favour of the present petitioner's son in respect of six items of the ka properties which included two out of the four items mentioned in schedule kha. On 9th March 1931, Eakub executed another mortgage bond in favour of the petitioner in respect of four items of properties of which two were covered by the karbarnama bond in favour of the opposite parties. On 26th April 1933, the opposite party 1 and the predecessor of opposite parties 2 to 5 brought a suit to enforce the mortgage created by the karbarnama against the mortgagors without impleading the puisne mortgagees. They obtained a decree and in execution of the decree for sale purchased the properties covered by the karbarnama, The entire decretal dues were however not satisfied by the sale and they applied for and obtained a personal decree against the mortgagors and in execution of the same purchased on 4th July 1942 the properties not covered by the karbarnama. On this date, viz., 4th July 1942, there were pending before the Court two suits, one by the petitioner, the other by his son to enforce the mortgages give a by Eakub and Ebrahim. Both the suits were brought in the year 1938. The final decrees were obtained on 21st April 1943. In execution of these final decrees the petitioner purchased the properties which had been mortgaged by the two mortgages of 28th June 1926 and 9th March 1931. The petitioner thereafter obtained possession of these properties which he had purchased, which included some of the properties of which the opposite parties had obtained possession in execution of the mortgage decree obtained by them. The opposite party 1 filed an application under O. 21, R. 100, Civil P. C. alleging that he was in possession when on 25th August 1944, he was dispossessed by delivery of possession, and applied to be put into possession. This application succeeded and an order was passed on 27th March 1945, to the effect that the opposite party must be put in possession of these pro-parties.

(3.) It was this success of the opposite party 1 which compelled the present petitioner to come to the Court and filed the suit, as already mentioned, on 28th August 1945. In that suit, as already mentioned, he, in addition to his prayer for declaration of his right, also made a prayer for redemption of the mortgage. In the meantime the original owners of the properties, Eakub and Ebrahim, filed applications under Section 37A, Bengal Agricultural Debtors Act, for setting aside the sale and for restoration of possession of the properties that were purchased by the opposite parties in execution of the original mortgage decree and the subsequent personal decree. This application succeeded and an order for restoration of possession in favour of Eakub and Ebrahim has been passed. It has been stated before us that the order in favour of Eakub and Ebrahim was later set aside by the District Judge acting under Section 40A, Bengal Agricultural Debtors Act, and that an application against the District Judge's order is now pending in this Court.