C L KIERNANDER Vs. BENIMADHAB KHETTRI

JUDGEMENT

(1.) One Asokenath Mitra was the owner of considerable properties, in respect of which he had executed various mortgages in favour of a large number of persons. Premises No. 10/2, Elgin Road, is one of such properties. That property lies outside the local jurisdiction of the Original Side of this Court, being situate in the district of 24-Parganas. On 22 December, 1921, one Nalinimohan Das Gupta, the assignee of one of the mortgages, being a mortgage executed on 25 June 1920, instituted a suit to enforce the said mortgage, asking for a decree for sale. Premises No. 10/2, Elgin Road, was one of the properties covered by the said mortgage. The claim at the date of the suit was Rs. 5,970-4-0 of which Rs. 5,000 was the amount of principal, and the balance the interest due.

(2.) He impleaded in that suit nine other persons, besides the mortgagor Asoke, who were puisne mortgagees in respect of one or other of the properties covered by the mortgage of 25 June 1920. On 6 March 1922 the plaintiff 1 in the present suit, who held a prior mortgage from Asoke for a sum of Rupees 38,000, as also a large number of other persons, who held other mortgages from Asoke, came in and were made parties to the suit instituted by Nalinimohan Das Gupta, and a consent decree was passed. The earliest of these mortgages was dated 1917, and the total amount, for which provision was made in this consent decree, was about five lakhs of rupees. In pursuance of the said decree, premises No. 10/2, Elgin Road, were put up to sale by the Registrar and was purchased by the two plaintiffs on 16 May 1924, for a price of Rs. 70,000. On 29 July 1924, the plaintiffs gave notice to defendant 1 in this suit, who was occupying the premises, to attorn to them and pay them rent or to vacate. Defendant 1, in a letter of 6 August 1924, claimed title to the premises and asserted that he was in possession in his own right and that he was not bound by the decree in the mortgage suit or the sale thereunder. On 30 August 1924, the plaintiffs relying on the said letter as having caused them resistance or obstruction asked the Judge sitting on the Original Side for an order under Order 21, Rule 97, Civil P.C., giving them possession of the property purchased by them. They obtained an order against the defendant 1, which was eventully modified on appeal. The Court of appeal, on 6 March 1925, ordered that the plaintiff's application as against defendant 1 should be dismissed and all that the plaintiffs should get was a plain order expressed to be without prejudice to any claim of defendant 1 directing the issues of a warrant in Form No. 43 of Appendix E to the Code with a supplemental direction that it be sent to the Court of 24-Parganas with a copy of the sale-certificate and with a certificate that possession had not been obtained within the jurisdiction of this Court.

(3.) On the aforesaid order being transmitted to the Court of 24-Parganas, a writ for delivery of possession was issued. On 27 June 1925 the plaintiffs applied to the District Judge of 24- Par-ganas asking that the naib nazir of the Court might be deputed to deliver possession with the assistance of the police as resistance was apprehended; and this prayer was granted. On 2 July, 1925 defendant 1 put in a petition alleging that he was the owner of the premises and in possession and praying for withdrawal of the writ. On this, proceedings under Order 21, Rule 97, Civil P.C., were founded, and they ended on 30 November 1925, in an order of the District Judge dismissing the plaintiffs application. The plaintiffs then instituted the present suit for declaration of title, and recovery of khas possession with mesne profits.