VALLABHDAS MULJI Vs. PRANSHANKAR NARBHESHANKAR

JUDGEMENT

(1.) This is a summons for an order that the Prothonotary and Senior Master do pay to the applicants, the attorneys for the plaintiff in the suit, a sum of Rs. 2,680-13-8 deposited with him by defendants Nos. 1, 4, and 5 in the circumstances hereinafter mentioned.

(2.) The plaintiff was a mortgagor. Defendants Nos. 2 to 5 were mortgagees with a power of sale. They purported to sell the mortgaged propetry to defendant No. 1. Defendant No. 1 sold it to defendants Nos. 6, 7 and 8. The suit was for a declaration that the sale to defendant No. 1 was void. Defendants Nos. 6, 7, and 8 were struck out from the suit with the plaintiff's consent. Ultimately the suit was tried by Fawcett J., who held that the plaintiff was entitled to avoid the sale. The costs of the hearing were given to the plaintiff against defendants Nos. 2 to 5 by the decree dated March 15, 1926. The mortgagees claimed that they (sic) are entitled to be paid the mortgage debt and various sums (sic) ended by them on the property. By the same decree Fawcett (sic) referred the suit to the Commissioner for taking accounts to (sic) an account and ascertain the amount due to the mortgage (sic) and reserved further directions and further costs. On March (sic) 1926, the applicants obtained a charging order ex parte (sic) the costs payable to the plaintiff by defendants Nos. 2 to 5. (sic) execution was then taken out by the plaintiff in respect of these (sic). Thereupon defendants Nos. 1, 4 and 5 took out a summon (sic) for a stay of execution upon the ground that a large amount (sic) be found due to them on the reference to the Commissioner. Upon that an order was made on November 8, 1927, that of defendants Nos. 1, 4 and 5 depositing the sum of Rs. 2,680-13-8 (sic) Court, execution should be stayed until the final hearing and (sic) of the suit, and the costs of the summons and order made (sic) were reserved with liberty to the parties to argue the (sic) before the learned Judge disposing of the suit finall (sic) The said sum of Rs. 2,680- 13-8 was paid into Court. The Commissioner found Rs. 27,832-7-0 due by the plaintiff on the mortgage in favour of defendants Nos. 1, 4 and 5. By the final (sic) passed on February 13, 1931, the Commissioner's report (sic) confirmed, and judgment was passed for defendants No. (sic) 4 and 5 for Rs. 54,641-2-0 which included the costs of (sic) chamber summons taken out by defendants Nos. 1, 4 and 5 (sic) stay of execution which had been reserved.

(3.) It is alleged in the affidavit of Nagindas (sic) in support of the summons dated April 2, 1931, that at (sic) time of the passing of the final decree defendants Nos. 1, 4 (sic) applied to the learned Judge for an order allowing them (sic) off the amount of the costs which they had been ordered (sic) to the plaintiff against the amount payable to them by the (sic), and that the Judge declined to make the order asked for in view of the fact that the applicants had obtained a charging (sic). In the affidavit of Hathibhai Harishanker in reply date (sic) June 13, 1931, this is denied, and it is alleged that as the plaintiff (sic) counsel informed the Judge that the applicants claimed some (sic) against the said amount, and desired to be heard, and were not before the Court, the Judge made no order and left the parties to take such proceedings in the matter as might be necessary, Be that as it may, defendants Nos. 1, 4 and 5 resist this summons upon the ground that they have a right of set-off, and that is the question which I have to determine.