NAGENDRA NATH DEY Vs. SURESH CHANDRA DEY

JUDGEMENT

(1.) This appeal raises a question as to the construction of Art. 182, Sch. 1, Lim. Act, 1908. In a suit brought many years ago for partition of certain properties held jointly by the parties to this appeal and their predecessors, a receiver was appointed with power to raise a loan on the security of a mortgage of the properties. The receiver borrowed Rs. 18,000 from some of the cosharers, and on 10 July 1894, he executed a mortgage of the properties in their favour. Amongst the mortgagees were Nagendra Nath Dey and Pulin Behari Dey, who are the appellants before this Board, and Madan Mohan and his son, who are respondents 24 and 27 respectively. The position at that date was that some of the cosharers were mortgagees and all the cosharers were mortgagors.

(2.) In 1907, after the shares of the several cosharers in the partition suit had been allotted to them and the receiver discharged, Madan Mohan and his son instituted the suit out of which the present appeal arises in the Court of the Subordinate Judge of Hooghly to enforce the mortgage. In this suit Mad an Mohan claimed that the appellants (defendants 11 and 12) had assigned their 'interest in the mortgage to him. The Subordinate Judge upheld his claim, and after taking accounts between the parties, passed a preliminary mortgage decree declaring inter alia the liability of the appellants to pay a sum of Rs. 4,467 which they accordingly brought into Court, On appeal to the Sigh Court at Calcutta a compromise was effected between the parties, and on 10 June 1913 a preliminary decree in supersession of the decree of the Subordinate Judge was passed by the High Court in terms of the compromise. Under this decree Madan Mohan's claim against the appellants was disregarded, and the appellants wore shown as mortgage-creditors for Rs. 14,615.15-3. The appellants thereupon applied to the Subordinate Judge for the withdrawal of the Rs. 4,467. Madan Mohan opposed their application, re-asserting his former claim, but his contention was overruled, and the appellants were allowed to withdraw their deposit. Madan Mohan appealed to the High Court, but his appeal was dismissed.

(3.) In the preliminary decree as passed by the High Court the cosharers were ranged into two groups, one of decree-holders consisting of six sets of cosharers and the other of judgment debtors consisting of eight sets of cosharers. After the date of the decree two out of the eight judgment-debtors paid the amount due from them under the decree. The rest did not pay, and on 4 June 1916, Madan Mohan applied to the Subordinate Judge for a final mortgage decree. In his application he again claimed that the appellants had assigned their Interest in the mortgage to him, and prayed that an order should be made to that effect. On 24 June 1920 the Subordinate Judge delivered his judgment, disallowing Madan Mohan's claim, and a final decree was passed for the sale of the mortgaged properties that had come to the share of the remaining six judgment-debtors. The decree was drawn up on 2 August, 1920, but properly dated as of 24 June. It contained a declaration, in conformity with the judgment, that the appellants were entitled to payment of the abovementioned sum of Rs. 14,615-15-3 out of the proceeds of the sale of the properties.