KAISER KHAN Vs. KHAJA ABDUL GHANI

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff and arises out of a suit commenced by him for declaration of his title to the properties in suit on the basis of a purchase at a mortgage sale and for confirmation of possession in respect of the same. The material facts are not in controversy and may be shortly stated as follows : The property in suit is premises No. 6 Middle Road, Entally, situated in the suburbs of Calcutta and it belonged admittedly to one Asraf Serang. Asraf Serang mortgaged it to one Girish Das by an indenture of mortgage dated 14 May 1903 to secure an advance of Rs. 1000 only. On 20 September 1906, Asraf sold the property to one Abdul Aziz who in Ms turn mortgaged these premises along with certain other properties known as Harinbari properties to one Abdul Gani, the defendant in this suit, as security for a loan of Rs. 2000. On 17 February 1914 Girish Das, the first mortgagee instituted a suit on the basis of his mortgage bond, and both Asraf and Abdul Aziz were made parties to the suit. Abdul Gani, the second mortgagee, was however left out and was not impleaded as a party defendant. Girish Das obtained a decree in execution of which the mortgaged premises were sold and were purchased by the present plaintiff on 14 September 1916. The plaintiff got possession on 30 May 1917.

(2.) In April 1918, Abdul Gani instituted a suit (being suit No. 510 of 1918) in the original side of this Court for enforcement of the mortgage bond executed in his favour by Abdul Aziz. The present plaintiff was made a party defendant to that suit, and in para. 8 of the plaint, Abdul Gani asserted his right to redeem the prior interest of the plaintiff Kauser Khan acquired by his previous purchase, in premises No. 6. Middle Road, Entally. There was a decree passed in that suit on 5 May 1922, which directed inter alia that the Harinbari properties should be sold first, and if the sale proceeds were not sufficient to satisfy the mortgage money, then premises No. 6, Middle Road, would be sold. This decree was made final on 23 January 1929. The Harinbari property having been sold already at the instance of another creditor, Abdul Gani got permission of this Court to sell the Middle Road property and that was put up to sale on 25 May 1935, and purchased by Abdul Gani himself. The plaintiff has now brought this suit against Abdul Gani and he seeks a declaration that Abdul Gani did not acquire any rights against him on the strength of his subsequent purchase and that the title which the plaintiff acquired on the basis of his purchase remains unaffected. The defendant Abdul Gani raised a number of defence s, and contended inter alia that he had no knowledge of the mortgage suit instituted by Girish Das, whereas Girish Das and the plaintiff were both aware of the defendant's mortgage. It was urged that by virtue of the sale in execution of the decree of that Court to which the plaintiff was a party, the defendant had acquired a title which would prevail over the rights of the plaintiff, if any, and as he was not impleaded as a party in the mortgage suit of Girish Das, he had a right to obtain possession of the disputed premises.

(3.) The trial Court decreed the suit in part. It held that the plaintiff acquired a title to the property by his purchase but that the defendant was entitled to redeem him. The plaintiff therefore could retain possession of the property only so long as the defendant did not pay the purchase money with interest at the rate of 6 per cent. per annum upon the same. The defendant was given two months time, within which he was to make the payment. Against this decision, the defendant took an appeal to the Court of the District Judge of 24-Parganas. The Additional District Judge who heard the appeal, reversed the decision of the trial Court and dismissed the plaintiff's suit. The learned Judge was, of opinion that as the plaintiff was made a party to the mortgage suit instituted by the defendant in the original side of this Court, and an order for sale of the property was made in his presence, he was bound by the decree and order made in that suit, and if he wanted to establish his own title to the property, he should have done so in the High Court suit. It is the propriety of that decision that has been challenged before us in this second appeal.