SARAT KUMAR ROY Vs. OFFICIAL ASSIGNEE OF CALCUTTA

JUDGEMENT

(1.) This is an application on behalf of the petitioner to England -- Kumar Sarat Kumar Roy-- for an order for stay of further proceedings in a certain suit being suit No. 278 of 1923 in the Court of the Third Subordinate Judge of Tipperah pending the hearing of an appeal to His Majesty in Council arising out of First Appeal No. 102 of 1927.

(2.) The petitioner obtained certificate for leave to appeal to His Majesty in Council some time in December 1929 and his appeal has been finally admitted on 28 January 1930. The facts shortly stated are as follows: It appears that certain persons who are three in number and who may be described as the Roys, executed a mortgage in favour of the appellant to England for Rs. 1,50,000 some time in January 1921. At the time, when the mortgage was executed, the properties mentioned therein were the subject-matter of a suit for partition in which the mortgagors were some of the parties. There was a petition for compromise filed by the parties in the partition suit and thereupon a decree on compromise was passed on 1 March 1921. The result was that certain specific properties were allotted to the mortgagors. Thereafter, the mortgagors thought it necessary to execute a fresh mortgage in favour of the appellant to England on 16 March 1921. On 9 August 1921, the mortgagors were adjudicated insolvents. On 3 August 1923, the appellant to England instituted a suit to enforce the mortgage being suit No. 278 of 1923 in the Court of the Subordinate Judge of Tipperah. The Official Assignee was made a party defendant in that suit. It is in evidence (and the evidence on this point has been accepted as correct both by the learned Subordinate Judge and by this Court on appeal) that the summons in that suit was served on the then Acting Official Assignee, Mr. Remfry, and that it was signed by him in acknowledgment of proof of service.

(3.) An ex-parte preliminary decree on the mortgage was made on 20 September 1923 there being no appearance on behalf of the Official Assignee; and the said decree was made final on 2 April, 1924. Thereafter, some time in June 1924, the Official Assignee--filed a suit in the Tipperah Court praying that the ex-parte decree in the mortgage suit might be set aside on various grounds of fraud. The matter was gone into at great length by the Subordinate Judge and ho came to the conclusion that there was nothing whatsoever in the plaintiff's case and that the suit should stand dismissed. He accordingly made a decree in 28 February 1927 by which the Official Assignee's suit was dismissed. The matter was taken on appeal to this Court and this Court by its judgment and the decree bearing date 15 July 1929 reversed the judgment and decree of the Subordinate Judge and directed that the decree in the mortgage suit should stand set aside and that the mortgage suit being Suit No. 278 of 1923 should be reheard. It is against that judgment and decree that the present petitioner has obtained leave to appeal to His Majesty in Council.