BATUK PRASAD BHAGAT Vs. RUDRA DAS CHAKRAVARTY

JUDGEMENT

(1.) These two appeals are directed against a decision of the Subordinate Judge at Hazaribagh dated 22nd December 1945, decreeing in part a suit impugning the validity of three mortgage decrees and the sales held in execution thereof.

(2.) Three simple mortgage bonds were executed on 10th July 1910, each hypothecating a one-third milkiat share in villages Dania, Lalpania and Khakhanda in the jurisdiction of Police Station Gomia to secure a sum of Rs. 2,200. The mortgagors sold their entire interest in these villages to the late Kalachand Chakravarty, father of the plaintiff, by a sale-deed dated 23rd March 1914. The mortgagors (mortgagees) sued on their bonds and obtained decrees for sale in Mortgage Suits No. 123 of 1917, 48 of 1918 and 49 of 1919. The property hypothecated was sold in execution of these decrees on 3rd February 1920, 4th February 1921 and 4th July 1921, respectively. In each case, the purchasers were the mortgagees decred-holders who subsequently transferred their rights under the purchase to Ram Ratan Bhagat, who was himself a joint decree-holder. Defendant 3 is the heir of Ram Ratan Bhagat and big possession over the property is admitted. The plaintiff sued for a declaration of the nullity of the mortgage decrees and the sales thereunder and for recovery of the property. The validity of the decree and sale in Mortgage Suit no. 123 is challenged on the ground that the final decree was passed and the execution was levied against Kalachand after his death, in Mortgage Suit No. 48 on the ground that the plaintiff was not impleaded either in the suit or the execution and in Mortgage Suit no. 49 on the ground that the plaintiff, then a minor, was not properly represented and, in the alternative, that there was gross negligence on the part of his guardian ad litem. In addition, there was a prayer for a decree for redemption of the simple mortgages.

(3.) The Subordinate Judge decreed the suit in respect of mortgage Suit No. 123 of 1917 accepting as established the allegations of the plaintiff. He has held that the plaintiff was properly represented in the other two suits, and has refused relief in respect thereof. Hence, the pre-sent appeals. Defendant 2 is the appellant in Appeal No. 56 and the plaintiff in Appeal No. 93.