BHUPHNDRA NARAYAN DUTT Vs. RAJENDRA NATH DUTT

JUDGEMENT

(1.) A share in a taluk called Bantra was mortgaged by Srinath Dutt to Khirod Chandra Mitra. The latter assigned his rights under the mortgage by way of security to Jogendra Chandra De, whose position was, therefore, that of a sub-mortgagee. After the death of Khirod Chandra, his executors brought a suit upon the mortgage in a Subordinate Judge s Court at Alipore against Srinath Dutt and certain persons called the Roys who had purchased from Srinath Dutt the equity of redemption in the mortgaged property. In that suit, a preliminary decree for sale was passed on the 20th July 1893, and the decree was made absolute on the 3rd October following. The decree has been referred to in argument as the Alipore decree.

(2.) Thereafter, Jogendra Chandra De brought a suit in the High Court for a declaration that Khirod Chandra s executors were trustees for him (Jogendra Chandra) in respect; of the Alipore decree and for other reliefs. The defendants in the suit included the executors, Srinath Dutt and the Roys. On the 7th December 1895, a decree was made by consent of Jogendra Chandra and the defendants executors, the other defendants, it is expressly stated, not appearing either in person or by Counsel. The decree conferred certain rights on Jogendra Chandra. Inter alia he was declared entitled to an agreed sum of Rs. 32,000 out of such amount as might be realized under the Alipore decree. Further liberty was given to him to take proceedings for the execution and realization of the Alipore decree in his own name upon his name being entered in the record of the Alipore suit as plaintiff in the place of the defendant executors. In the event of his taking such proceedings, any sum realized by him in excess of Rs. 32,000 and costs was to be made over by him to the executors.

(3.) The mortgaged property has been thrice sold (subject to incumbrances) for default in the payment of revenue, on the 25th September 1894, the 16th August 1895 and the 13th December 1897. At the last sale, the equity of redemption was purchased by Bhupendra Narain Dutt and others, the appellants before us, for a comparatively small sum.