BANI MADHAB GHOSE Vs. GANGA GOBIND MANDAL

JUDGEMENT

(1.) This is a suit for possession of land brought against Lakinarayan, the son of Sarbeswar, Haris Chandra Mookerjee, and Ganga Gobind Mundai. It has been found as a fact that Sarbeswar, who is now represented by his son, on the 11th of Baisakh 1259 (1853) executed a deed which was in form an absolute sale of 33 bigas 11 kathas of land at Raghunathpore in the zilla of Hooghly, and of 4 bigas 19 kathas of land at Kidderpore in the 24-Pergunnas, in favour of the defendant Haris Chandra for the consideration of rupees 1,000. It is not however asserted by the plaintiff, who claims through this conveyance, that this was in reality an absolute sale; it is admitted to have been only a mortgage, and it has been found as a fact that Haris Chandra gave to Sarbeswar a notice of foreclosure, the period for redemption under which expired on the 30th March 1854. Haris Chandra book no steps to recover possession of the property, and on the 5th Magh 1269 (1863) he sold the property to the plaintiff.

(2.) The defendant Ganga Gobind Mandal has established that a few months after the mortgage to Haris Chandra, Sarbeswar sold to him that part of the mortgaged property which was situate at Kidderpore, and ' since that time he has been, and is now in possession, but the precise date when be got into possession is not shown. No notice of foreclosure was served on Ganga Gobind, but it is admitted that the mortgagee was not aware of his purchase. Ganga Gobind defends the suit in respect of the land at Kidderpore only; the other defendants make no defence. The question now before us is, whether the mortgagee was bound to give notice of foreclosure to Ganga Gobind, and whether without such notice the plaintiff can recover possession of the land at Kidderpore.

(3.) The question turns entirely on the construction to be given to the words "legal representative" in Regulation XVII of 1806. In the first place, it is contended broadly, that those words do not mean the legal representative of the mortgagor in respect of the particular property mortgaged, but the universal legal representative, such as an heir, and there is no doubt some color for this contention. These words are sometimes used in the latter sense as for instance in section 210 of the Code of Civil Procedure, and this is the idea which these words would at first sight rather suggest to my mind. But it appears to me to have been settled by long practice and authority that they were not used in this Regulation in that sense. The late Sudder Court held that the purchaser at a sale in execution of civil process is entitled to notice, and that doctrine has I believe ever since been acquiesced in. Now this completely negatives the construction contended for. An auction purchaser, as he is called, is not the universal legal representative of the mortgagor; he is only the assignee of a portion of his property.