PITRAM Vs. LALIT CHANDRA DUTTA AND ORS.

JUDGEMENT

(1.) THIS is an appeal from the order of the Dist. J.L.A.D., dated 4 -11 -1948 by which the order of the Addl. Sub -Judge, A.V.D. dated 17 -7 -1947 granting pltf. a preliminary decree for sale of the mortgaged property against defts. 1 -5, was set aside. The pltf. has appealed to this Ct.

(2.) THE fasts leading to the litigation are as follows: Dharmanath was the original owner of the land by the sale of which the pltf. wants to recover the mtge. debt due to him. Dharmanath mortgaged 40 bighas out of his share in the land of the patta in question to Mt. Tarapriya, deft. 6, in consideration of a sum of Rs. 1000 on 6 -2 -1924. On the same day, he borrowed a sum of Rs. 1200 from deft. 7, Bhubindranarayan and mortgaged Anr. 48 bighas out of his share in the patta land. On 2 -4 -1931, Dharmanath & his brother Ananta (deft. 9) both mortgaged 34 B, 3 K. 12 L. of land jointly to Lalit Chandra Dutta, deft. Section this mtge. was with possession. On 14 -6 -1931, both the brOrs. borrowed Anr. sum of Rs. 700 from the same Lalit Dutta & mortgaged (sic). By this mtge. deed 40 bighas out of his share of the land of the patta were mortgaged to she pit Dharmanath undertook to reply the can with in a year with interest at 12 per cent per annum. It is on the basis of this mtge. deed that pltf. has sued for recovery of the debt by Bale of the property mortgaged.

(3.) ON 23 -3 -1933 after the last mtge. in pltf'a, favour, Dharmanath sold 43 B. 14 L. of land out of his share in the patta land to deft. 8, Lalit who got a separate patta for the area sold to him. On 13 3 -1935, Dharmanath sold Anr. 40 bighas out of his share to deft. 7 Bhubindra, the second mtgee. He also got a separate patta for the area purchased by him Defendant 6, Mt. Tarapriya, sued to enforce her mtge. in 1933. The pltf. In the present case was not a party to that suit. She obtained a final decree for Bale in execution of which 40 bighas of land were sold & purchased by her on 19 8 -1937. These three sales exhaust Dharmanath'a share in the lands of the patta in question. In fact, these sales are admittedly in excess of his share.