SATISH CHANDRA SEN Vs. JEWAN LAL DAGA

JUDGEMENT

(1.) These two appeals are directed against one order made in the course of execution. The only question raised by these two appeals is one of limitation. In order to appreciate the point it is necessary to state a few salient facts. It appears that Mugneeram Bangar and Kedar Nath Daga instituted a suit in the Court of the Subordinate Judge at Asansol against S. H. Seddon and Rasaraj Biswas for declaration of their title to two-annas share of a large number of valuable coal properties and for recovery of about ten lacs and odd under a mortgage-bond said to have bean executed by the said two persons in favour of the plaintiff's on 31 March 1921. This suit was compromised and on 3 July 1923 the decree which appears to be a preliminary decree for sale was passed by the Subordinate Judge against the said defendant 1, Seddoa, in favour of the plaintiffs according to the terms of a settlement which is to be found annexed to the decree at pp. 3, 4 and 5 of the paper book. Kedar Nath Daga, one of the plaintiffs, died on 1 January 1924 and on an application on behalf of his two minor sons Jiwan Lal Daga and Satya Narayan Daga through their mother and guardian, one Lachmi Bai, they were substituted in place of the said Kedar Nath Daga on 19 November 1924. On 18th April 1925 a final decree for sale was pased in favour of the said Mugneeram and the two minor sons of Kedar Nath Daga against S. H. Seddon. The order making the decree absolute is to be found on pages 10, 11 and 12 of Part 2 of the paper book. After this final decree had been made the appellant in Appeal from Original Order No. 251 of 1931 was appointed a Receiver in Suit No. 908 of 1923 which was brought by one Sashi Kanta Banerjee against the said S. H. Seddon.

(2.) On 10 February 1930, nearly 5 years after the order absolute was made, the two minor sons of Kedar Nath Daga applied for execution of the decree against Seddon, the present Receiver, as well as against one Rasaraj Biswas, and the other decree-holder Mugneeram Bangar was made opposite party to the said application, being described as the decree-holder proforma in the petition for execution which is to be found at pages 13 to 15 of the paper- book. This application for execution resulted in the starting of the Miscellaneous Title Execution Case which was numbered as 38 of 1930. On this both Mr. Seddon and the present Receiver who is the appellant in M. A. No. 251 of 1931 preferred objections to the execution of the decree and their main contention was that the decree was barred by limitation as no application was made within three years from 18 April 1925 when the final decree in the case was made. The objection was finally decided by an order of the Subordinate Judge dated 3 February 1931. It is material to observe that although the petition of objection was filed on 19 May 1930 and the petition was not disposed of till 3 February 1931 the present appellant did not set out the facts on which they contend that the application for execution was barred by limitation which facts are now urged before us by Mr. Basu who appears for the appellant. This was a circumstance which we shall show later goes very much against the contention of the present appellant that no opportunity was given to them of establishing the facts which are now alleged. The subordinate Judge however came to the conclusion that as the decree was a mortgage-decree and as it was not possible for Mugneeram, the adult decree-holder, to give a valid discharge with reference to mortgage debt, having regard to the provisions of Section 7, Limitation Act, the application of the minor decree-holders is nob barred by the statute of limitation. He accordingly dismissed the objections. Against this order the two appeals have been preferred, as has already been stated, one by Seddon and the other by the Eeceiver, Satish Chandra Sen, and it is argued before us that in arriving at a decision adverse to the appellant the Subordinate Judge has merely relied on the abstract doctrine of law that one of the two comortgages cannot ordinarily give a valid discharge in respect of the mortgage-debts.

(3.) It is strenuously contended that it may be that on the deed or indenture on which the suit was instituted the two decree-holders were really partners and therefore under Illus. (a), Section 7, Limitation. Act, time would run against all including the linfant decree-holders. But unfortunately for Mr. Basu's client no foundation was laid for this case in the Court below. Although the execution case remained pending for a good length of time no such case was made out either by putting in an application to the Court below to produce evidence in this behalf or to produce even the indenture which is now sought to be referred to by Mr. Basu in the course of his argument before us and to the reception of which objection has been rightly taken by Mr. Banerjee who appears for the respondents; It has not also been stated in the petition that there are circumstances which would take the case out of the general rule, namely, that a co- mortgagee cannot give a valid discharge in respect of mortgage., debt so as to bind his co-mortgagee. This question was discussed very elaborately by N. E. Chatterjea, J. in a recent case of this Court in the case of Satindra Nath Choudhury V/s. Jatindra Nath and the learned Judge after a review of the authorities came to the conclusion; that mortgage-debt being one and indivisible ordinarily one mortgagee alone cannot enforce the mortgage for his share of the debt only except in cases where there has been Severance of the mortgagee's interests effected with the mortgagor's consent and further that the discharge by one mortgagee alone is valid only as regards his share of the debt and the payment of the mortgage money by the mortgagors to one only of several joint mortgagees is not a good and valid payment as against the other mortgagee or mortgagees and does not operate as a discharge as to all. It is true that there is perhaps some conflict of authorities between the different High Courts of India as has been noticed in that judgment. But the consensus of authorities is in favour of the view which has been taken by Chatterjea, J. The same view has been taken, by Page, J. in another case which is referred to in the judgment of the Subordinate Judge. That is the case of Sm. Jugal Kishori Debi V/s. Baidya Nath , points out in that case that some of the decisions are difficult to reconcile. The learned Judge says this: I have examined a number of eases upon this subject, It is not easy to disentangle them and to reconcile them is impossible.