HIRANYA BHUSAN MUKHERJEE Vs. GOURI DUTT MAHARAJ

JUDGEMENT

(1.) This appeal is by defendant 4 and defendants 3(a) to 3(h) in a suit for sale in enforcement of a mortgage. The mortgage in question is dated 21 September 1932, on which date defendant 1 borrowed from the plaintiff a sum of Rs. 6000 and executed the mortgage bond in his favour agreeing to pay interest at the rate of 21 per cent. per annum. The bond is Ex. 1 in the suit and constitutes a simple mortgage. The property given in mortgage is defendant 1's interest in C. Section Plot No. 5820 of Khatian No. 1178 measuring 17 kattas 5 chattaks in area within the municipal town of Asansol together with pacca structures and the fixtures, etc., described in Schedule A to the plaint. It is a cinema house in the town of Asansol. The plot of land belongs to one Harihar Mukherjea and his co-sharers. Defendant 1 took lease of this land from him for the purpose of establishing a cinema house on it.

(2.) The present suit was instituted on 8 July 1938. By that date, the mortgage money amounted to Rs. 13,501-2-0. The claim was laid at Rs. 12,000 after relinquishing rupees 1501-2-0. Defendants 2 to i were made parties as having acquired interest in the equity of redemption by subsequent purchases. Defendant 3 died during the pendency of the suit and his legal representatives were substituted in his place as defendants 3(a) to 3(h). Defendant 1, the sole mortgagor, did not contest the claim. The claim, however, was contested by defendants 2 to 4. Defendants 2 and 3 filed one written statement and defendant 4 filed another. The written statement filed by defendant 3 was adopted by his legal representatives, defendants 3(a) to 3(h). Defendant 4 in his written statement set up a title paramount to the mortgage. His case inter alia was that defendant 1 having defaulted in the payment of rent, the landlords Harihar Mukherji and others brought a suit for arrears of rent, and, in accordance with the terms of the lease, obtained a "a first charge decree" in respect of defendant 1's leasehold interest in the land together with the structures, machineries and furniture, etc., put these to sale in execution of that decree and the contesting defendant purchased the same at that sale on 12 May 1935. He, therefore, contended that the title thus acquired by him was not an interest in the equity of redemption but was paramount to the mortgage in question.

(3.) The case of defendants 2 and 8 is that the mortgage in question is not available to the plaintiff against the property in their hands, the same having been hit by the principle of lis pendens. Their case is : (1) That on 8 June 1932 defendant 1 entered into an agreement with defendants 2 and 3 whereby in consideration of a sum of Rs. 15,000 he agreed to transfer to these defendants a moiety share in the property in question in the present suit and in the cinema business and to execute (a) a proper deed of conveyance for the same, and (ii) a deed of partnership relating to the cinema business. (2) That pursuant to this agreement these defendants forthwith paid rupees 5000 to defendant 1 and that thereafter the balance of Rs. 10,000 was also paid to them gradually; that besides this sum of Rs. 15,000 another further sum of Rs. 2375 was advanced's by these defendants to defendant 1 for further development of the property and the business. (3) That defendant 1 having neglected and failed to execute the proper and necessary documents in favour of these defendants, they on 20 September 1932 instituted the title Suit No. 229 of 1932 in the Court of the Subordinate Judge, Asansol, in which a right to this property was directly and specifically in question. (4) That the said suit ended in a compromise decree on 17 November 1932 whereby these defendants obtained a final charge decree for Rs. 18,500 against defendant 1 in respect of the property which formed the subject-matter of that suit and which is also the subject-matter of the present suit. (5) That according to the terms and conditions of that decree, the property was ultimately sold on 5 May 1933 pursuant to the said final charge decree and was purchased by these defendants for Rs. 15,050 that the said sale was confirmed on 18th December 1933 and the defendants took possession through Court on 5 June 1934.