GOPESWAR PYNE Vs. HEM CHANDRA BOSE

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Litters Patent an appeal from original decree, wherein the Judges of the Division Bench ware equally divided in opinion. Mr. Justice Teunon and Mr. Justice Greaves, who heard the appeal, were in agreement to some extent, but as they could not agree upon all the points, the judgment of the Subordinate Judge has been affirmed.

(2.) The suit is for the enforcement of five mortgage-bonds which were executed by the first two defendant?, Moni Mohan Roy and his wife Hari Dasi Debi, on the 12th September 1903. the 25th September 1,03, the 18th November 1903, the 8th December 1903 and the 1st February 1904. The sum advanced on each of the first four bonds is stated to have been Rs. 1,000, while the amount covered by the fifth bond is said to have been Rs. 5,000. The properties covered by the successive mortgages are two, namely, first, a decree for money obtained by Hari Dasi Debi in the Court of the Subordinate Judge of Hughli on the 26th January. 1893 against Madhab Chandra Roy and others; and, secondly, a Zemindari known as Gumukpota owned by Moni Mohan Roy. it is stated in the mortgage bonds that at the time when they were granted, the decree was already under execution and that the last step had been taken in June 1903.

(3.) The plaintiff seeks to recover the sum due under these mortgages by sale of the Zemindari. There is no claim for a personal decree; indeed, there could not be such a claim, as the suit was not instituted till the 6th September 1915 long after the personal claim had become barred by limitation. The suit was not defended by either of the mortgagors, but objection was taken by the third defendant, who claims to have acquired a good title to the Zamindari by virtue of the transactions which we shall now mention. On the 31st May 1905 the Zemindari was mortgaged by Moni Mohan Roy to the third defendant. The usual mortgage decree was obtained on the 8th June 1906 and at the execution sale which took place on the 23rd November 1907, the property was purchased by the third defendant himself. In answer to the claim of the present plaintiff, the third defendant contends that no money was advanced tinder any of the five mortgages set up by him and that consequently he is not entitled to a decree for sale of the Zemindari on the strength of what are no better than fictitious mortgagee.