KAVIRAJ BASUDEVANAND Vs. RAGHUBIR SARAN RASTOGI

JUDGEMENT

(1.) This appeal by Kaviraj Basudevanand, the objector, is directed against an order dated 6-10-1953 of the Subordinate Judge of Hazaribagh, dismissing his objections under Section 47, Civil P. C., in Miscellaneous Judicial Case No. 30 of 1953.

(2.) The litigation out of which this appeal arises has rather a long history. It will be necessary to mention some of the facts in order to understand the points which arise for decision.

(3.) Upendra Nath Banerji and his son Dhirendra Nath Banerji executed a mortgage bond on 5-8-1938 in favour of the Chota Nagpur Banking Association, Limited, to secure a sum of Rs. 40,000, Properties in Gaya district as well as Hazaribagh District were given in security. The properties of Hazaribagh District which were mortgaged consisted of 3 annas 3 pice share in Mahal Gaddi Masnodih, tauzi No. 32. There were 33 villages in this Mahal. On 13-6-1939, Dhirendra Nath Banerji gave a lease of his share in Mahal Gaddi Masnodili to Shyamal Ram Surekha. On 15-2-1943, the Chota Nagpur Banking Association, Limited, instituted Mortgage. Suit No. 1 of 1943 in the Court of the Subordinate Judge of Hazaribagh to enforce their mortgage. Upendra Nath Banerji and Dhirendra Nath Banerji were the first two defendants in that suit. Shyamal Ram Surekha was implcaded as defendant 3 on the ground that he had taken lease of some of the mortgaged properties and Narahari Gir was impleaded as defendant 4 on the ground that Dhirendra Nath Banerji had executed a deed on 22-4-1942, whereby he had acknowledged that he was merely a Benamidar for Narahari Gir with regard to the share of Gaddi Masnodih in question. On 11-8-1943, a compromise petition was filed in the suit. This compromise was effected between the plaintiff bank and defendants 1, 2 and 4 and it was agreed between these parties that the mortgagee would be entitled to sell all the mortgaged properties in case the instalments fixed by the compromise were not paid. Shyamal Ram Surekha, defendant 3, filed a written statement and pleaded that his lease was binding upon the plaintiff and that, in any case, the plaintiff should be ordered, in the first instance, to sell the Gaya properties in enforcement of his mortgage. Thus, the contest between the plaintiff and Shyamal Ram Surekha continued. On 6-4-1944, Brijraj Saran Rastogi was substituted as plaintiff in the suit as an assignee of the Bank's interests in the mortgage.