KALIPADA MUKERJI Vs. BASANTA KUMAR DUTTA

JUDGEMENT

(1.) The facts which have led up to these two appeals are the following: In a suit for sale instituted by certain persons as the first mortgagees, who for the sake of brevity may be called the Rai Chaudhuris holding a mortgage from the appellant Kali Podo Mukherji in which they had impleaded as defendants the said appellant as the mortgagor as well as one Abinash Chandra Dutt as the puisne mortgagee a final decree for sale was passed in accordance with the provisions of Order 34, Rule 5. Civil P.C. on 31 May 1927. The decree was in these words: It is ordered that the immovable properties mentioned in the said decree and specified at the foot thereof or so much thereof as may be necessary be sold by public auction and that the money which may be realized by such sale (after defraying thereout the expenses of sale) be paid into Court to the credit of this suit and that the sum of Rs. 54,301-5-6 payable under the said preliminary decree together with Re- 1-12-3 the costs of the application for final decree and further interest from 29 May 1927 up to the date of payment at the rate of 6 per cent per annum specified in the said decree be paid to the plaintiffs and that the claim of the second mortgagee (defendant 2) will be realized from the balance of the sale-proceeds if any after satisfaction of the due3 of the plaintiff (first mortgage) and that the balance if any be paid to the defendant 1 (the mortgagor.)

(2.) The sale was held on 22 May, 1923. One Basanta Kumar Dutt, brother of Abinash Chandra Dutt, purchased the properties for Rs. 58,500 and deposited Rs. 15,000 as required by Order 21, Rule 84, Civil P.C. The balance of the purchase money as required by Order 21, Rule 85 was not paid within 15 days, i. e., 5 June 1928 but on 5 June 1928 a petition was filed by the purchaser for extension of time for the payment and as it bore the consent of the mortgagor judgment-debtor Kali Podo Mukherji, no action under Rule 86 was taken by the Court and no resale was ordered but the purchaser was allowed extension of time by ten days. Within that time on 15 June 1928, the balance of the purchase money Rs. 43,500 was deposited. Eventually the sale was confirmed, sale certificate being issued in the name of Basanta Kumar Dutt. When possession was about to be taken by the auction-purchaser, objection was preferred by Kali Podo Mukherji on 27tb April 1929. This objection to delivery of possession was dismissed by the Subordinate Judge on 11 June 1929. From this order Kali Podo Mukherji preferred Miscellaneous Appeal No. 329 of 1929 on 21 June 1929.

(3.) On 5 July 1929, Kali Podo Mukherji instituted a title suit against Basanta as defendant 1, Abinash as defendant 2, and the Roy Chaudhuris as pro forma defendants 3 to 5. He challenged the petition of 5 June 1928 as fraudulent and denied that he had consented to the extension of time that Basanta had obtained. He alleged that the real purchaser was Abinash. He put down his cause of action in the plaint in these words: The cause of action for the suit arose . . . on 2 2 May, 1928, i. e., the date of auction-sale and subsequently on 20 April 1929 when the matter contained in the fraudulent petition dated 5 June 1928 filed by defendants 1 and 2 was known to the plaintiffs.