KUNJMOHAN SHAHA PODDAR Vs. KARUNAKANTA SEN CHAUDHURI

JUDGEMENT

(1.) The suit in which this appeal arises was brought by the plaintiff to enforce a mortgage security executed by Sreematee Bangabasinee Chaudhuranee, MahanandaSen and Karunakanta Sen (defendants 1, 2 and 3) on 25 Jais-tha 1319, corresponding to 17 June 1912. This suit was tried along with another suit brought by the same plaintiff to enforce a mortgage-bond said to have been executed on 14 Sraban 1321 B.S., corresponding to 30th July 1914, by the first two defendants in the present suit, namely Bangabasinee and Mahananda. The suit in which this appeal arises was numbered as Suit No. 101 of 1922 of the Court of the Subordinate Judge of Dacca. The suit in the later mortgage was numbered as Suit No. 100 of 1922. The present suit was decreed, ex parte against defendant 3 and on contest against defendants 1 and 2 on 29 January 1924. It may be mentioned here that defendant 1 is the mother and defendant 2 is the brother of defendant 3. Defendant 3 applied to set aside the ex parte decree and the decree was set aside so far as he was concerned. The suit proceeded to trial against defendant 3.

(2.) The defences of defendant 3 were, amongst others, (1) that he was a minor at the date of the execution of the bond and is not bound by the mortgage-bond in suit; (2) that the plaintiff has on receipt of a total sum of Rs. 9,000, after remitting some amount from the amount due on the mortgage-bond in suit and other bonds, according to an amicable adjustment, admitted that his dues in respect of bonds in suit were all satisfied; and that, out of the said amount fixed on amicable settlement, defendant 2 paid a total sum of Rs. 6,258 within the period commencing from the month of Kartik up to 10 Magh 1326 B.S., by settling some lands owned and possession by defendant 3 and by selling some properties to one Anandamayee Gupta; in other words, the defendant contended that the mortgage bond had been satisfied by adjustment under the amicable arrangement. On the question of minority, the Subordinate Judge of Dacca has held against the defendant; on the question of the adjustment, the Subordinate Judge has found that the defendant has paid the sum of Rs. 5,218 to the plaintiff and the plaintiff was bound to appropriate the sum of Rs. 3,468 out of that sum towards the mortgage-bond in suit and if he had done so the mortgage-bond in suit (Ex. 1) must be held to be satisfied. He has come to the conclusion that plaintiff was not justified in appropriating the sum of Rs. 3,468 towards other debts owed only by defendants 1 and 2 and not by defendant 3, and in this view the Subordinate Judge is of opinion that defendant 3 is not liable.

(3.) The Subordinate Judge below has also rested his decision on a case not raised by the pleadings and on which no issue was joined and has found that the sum due under the mortgage-bond in suit was included in the sum of Rs. 3,000 for which the later mortgage-bond (Ex. 1-A) was taken. On these findings, he has dismissed plaintiff's suit as against defendant 3. Defendants 4 to 7 have been impleaded, as they are said to be purchasers of portions of the equity of redemption. The result is that the plaintiff's suit has been dismissed as against defendant 3 and it has been directed that the preliminary decree passed on 29 January 1924, against the remaining defendants be made absolute. The present appeal has accordingly been brought by the plaintiff against the decree dismissing his claim as against defendant 3.