SARAT CHANDRA GHATAK Vs. JOY SANKAR ROY CHOUDHURY

JUDGEMENT

(1.) This is an appeal from an order passed by the Subordinate Judge, third Court, Mymensingh, refusing to set aside an execution sale, The appeal has been preferred by two of the judgment-debtors, namely, judgment-debtors 3 and 4. For a proper appreciation of the contentions that have been urged in connexion with this appeal, it is necessary to follow the facts a little closely. The decree-holder's opposite parties instituted a suit for recovery of Rs. 27,000 add on account of a mortgage bond dated 11323. They impleaded in the suit twenty persons as defendants of whom the first five were the original mortgagors and the rest ware persons who had acquired interest in the equity of redemption. When the suit was pending in the trial Court a compromise was entered into between the plaintiffs on the one hand and defendants 1 to 5 on the other.

(2.) The other defendants in the suit were not parties to this compromise. The terms of this compromise that are relevant at the present stage were that the plaintiffs would get a mortgage decree for Rs. 24,000, that in default of payment of any two successive kists (there having been certain instalments provided for in the compromise for payment of Rupees 24,000) all the remaining kists should be deemed to be in default and the plaintiffs should at once be entitled to realize the entire amount with interest and that the decree that was to be passed in the compromise was to be regarded as the final decree in the case so that before executing the decree it would not be necessary for the plaintiffs to obtain another decree in the nature of a final decree. A decree was passed on the basis of this compromise but not exactly in accordance therewith.

(3.) The suit as against the remaining defendants was dismissed and a money decree only as against defendants 1 to 5 was passed by the Subordinate Judge. This decree is dated 7 July 1924. From this decree an appeal was taken by the plaintiffs to this Court. This Court varied the decree appealed from and so far as defendants 1 to 5 were concerned it passed an instalment mortgage decree against those defendants for Rs. 24,000 in accordance with the solenama but only in respect of the properties which ware in the possession of those defendants and not in respect of the properties which had passed into the hands of the other defendants. This Court also ordered that the suit as against defendants 16 to 20 would stand dismissed but as against defendants (6 to 15 it held that certain inquiries were to be made by the Court below and thereafter a mortgage decree would -be passed on the footing that so far as they were concerned the value of the suit was Rs. 3,000.