TARA PRASANNA BOSE Vs. NILMONI KHAN

JUDGEMENT

(1.) Thirteen properties were mortgaged by the judgment-debtor, the appellant before us, to the decree-holder, the first respondent, by an instrument dated the 15th Ashar 1312 (29th June 1905). The first Respondent, Mahananda Chakravartti, brought a suit upon his mortgage on the 4th December 1908, and on the 22nd April 1909, a decree was made therein in the usual form for payment of the mortgage-debt or in default for the sale of the mortgaged properties. On the 24th June 1909, the appellant mortgaged one of the thirteen properties (No. 11) by way of conditional sale to the other respondents in this appeal who are described as the petitioners. The latter brought a suit upon their mortgage and under the decree which they obtained, dated the 8th June 1911, they foreclosed the mortgage and entered into possession of property No. 11. Mahananda Chakravartti having obtained in the execution department an order for the sale of the properties mortgaged to him, the petitioners came in and applied that the properties other than No. 11 should be sold first and that No. 11 should be sold last. The application was opposed both by Mahananda Chakravartti and the appellant but was allowed by the learned Subordinate Judge by an order dated the 15th March 1912. Mahananda Chakra-vartti has not appealed from that order. The appellant is, as we have said, the judgment-debtor, Tara Prasanna Bose. It will be observed that the petitioners interest arose after Mahananda obtained his decree.

(2.) The first question which arises is, whether the petitioners were at liberty to coma in under Section 47 of the Civil Procedure Code and apply as they did. In our opinion, on the authorities, the question must be answered in the affirmative. It is clear that the petitioners are bound by the decree made in the suit brought by Mahananda Chakravartti. They are, therefore, as regards property No. 11, the representatives of Tara Prasanna Bose within the meaning of Section 47: Ishan Chunder Sirkar v. Beni Madhub Sirkar 21 C. 62 : 1 C.W.N. 36. The question involved in the application was substantially a question arising between the petitioners and Mahananda Chakravartti, though it might also involve a separate and distinct, question arising between the petitioners and Tara Prasanna Bose. The contention, therefore, urged on behalf of the appellant, that the application as an application under Section 47 was incompetent, must be rejected. Then it was said that if the application was competent, the learned Judge had no power to make the order appealed from: The Courts, however, have power in appropriate circumstances, to make such orders, under Sections 56 and 81 of the Transfer of Property Act.

(3.) In regard first to Section 8 , no doubt, that section only applies where the second mortgagee had no notice of the first mortgage. But no question of notice was raised in the Court below or in the grounds of the appeal preferred to this Court. Till the appeal came to be argued before us, it was never suggested either by Mahananda or by Tara Prasanna that the petitioners had notice of the mortgage to Mahananda. We cannot allow the question to be raised for the first time in appeal.