SURENDRALAL KUNDU Vs. AHMMAD ALI

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of possession of three plots of land on a declaration of plaintiffs title thereto and also for mesne-profits.

(2.) The allegations on which the plaintiffs brought the suit were briefly these: In April 1911, defendant 1 mortgaged three plots of land to the plaintiffs. A mortgage suit was instituted against defendant 1 and a mortgage decree was obtained in April 1923. In execution of that mortgage decree, the property was sold and formal delivery of possession was obtained on 4th May 1925, corresponding to 21 Baisakh, 1332. But when the plaintiffs men went to take actual possession by the end of Baisakh 1332, they were opposed by defendants 2 to 4, defendants 5 to 7 and other persons. The defence of defendants 2 to 4 and defendants 5 to 7 inter alia was that the plaintiff's suit was barred by limitation and the plaintiffs could have no remedy against them inasmuch as they had purchased from defendant 1 the equity of redemption before the institution of the suit and although the plaintiffs were aware of their purchase they had left the defendants out in their mortgage suit. Both the Courts below dismissed the plaintiffs suit. The plaintiffs have appealed to this Court.

(3.) The main question that would arise for consideration in this case is whether the plaintiffs, having left out the purchasers of the equity of redemption in their mortgage suit, would have any remedy in the present case as against those purchasers. On the abstract question whether the purchaser at a mortgage sale has any remedy against the purchaser of the equity of redemption who was left out in the mortgage suit, and if so what that remedy is, the decisions of this Court have not been very consistent and the decisions of some of the other High Courts also on the point have not been far from conflicting. On one side may be ranged the decisions in the cases of Grish Chunder Mondul V/s. Iswar Chunder Rai (1898) 4 CWN 452, Habibullah v. Jugdeo Singh (1901) 6 CLJ 609, Aghor Nath Banerji V/s. Deb Narain Guin (1906) 11 CWN 314, Krishtopada Roy V/s. Chaitanya Charan AIR 1923 Cal 274, Hargu Lal V/s. Gobind Rai (1897) 19 All 541 and Madan Lal V/s. Bhagwan Das (1899) 21 All 235 (F B), while on the other the decisions in the cases of Protap Chandra V/s. Ishan Chandra (1898) 4 CWN 266, Jugdeo Singh v. Habibulla (1907) 12 CWN 107, Gangadas Bhattar V/s. Jogendra Nath (1907) 11 CWN 403, Kalu Sharip V/s. Abhoy Charan Karmokar AIR 1921 Cal 157, Bhagaban Chandra V/s. Tarak Chandra and Bhodai Sheikh V/s. Barada Kanta . But the present case has its exceptional features which would make it distinguishable from almost all the cases mentioned above. In the present case, in the mortgage suit brought by the plaintiffs the equity of redemption was wholly unrepresented and moreover although the plaintiffs, when they brought the suit, were aware of the purchase made by the defendants 2 to 4 and 5 to 7, they left them out in their suit brought on the mortgage. There was moreover the fact that the present suit was instituted on 19 September 1927, more than twelve years after the due date in the mortgage bond. The present case seems to be on all fours with the case in Digambar Suthar V/s. Suajan and as in that case it must be held in the case before us that the equity of redemption, having been wholly unrepresented in the plaintiffs mortgage suit, the mortgage decree obtained by them so far as the property in suit is concerned, was nothing better than a nullity and the plaintiffs on the basis of that mortgage decree had no title to the property. They were no doubt the mortgagees of defendant 1, the original owner, and as such mortgagees could enforce their right as against the purchasers of the equity of redemption if there was no bar against them either on ground of limitation or any other grounds. But, as observed before, the plaintiffs suit in the present case was instituted long after the expiration of twelve years from the due date and that being so, their remedy against defendants 2 to 7 was clearly barred by limitation. The plaintiffs suit, in my judgment, was rightly dismissed and the appeal must therefore be dismissed with costs. Jack, J.