DASO POLAI Vs. NARAYANA PATRO

JUDGEMENT

(1.) The plaintiff is the appellant. The appeal arises out of a suit instituted by the plaintiff for Rs. 21,000 due on a registered mortgage bond, dated 1 August, 1913. The sum secured by the mortgage was Rs. 5,000 and the debt was repayable in 7 years. The mortgagors are defendants 1 to 4.

(2.) The circumstances relating to the suit are these. In O.S. No. 59 of 1919 on the file of the Court of the Subordinate Judge of Berhampore one Bennu Nahko, the late father of defendants 5 and 6 and the grandfather of defendants 7 and 8, obtained a money decree against the plaintiff's mortgagors, defendants 1 to 4, on 18 October, 1919. In E.P. No. 150 of 1919 the decree-holder asked for attachment and sale of the suit property. In Ex. A, the schedule attached to this Execution Petition, the decree-holder gave a list of five encumbrances said to be existing on the property. There is a note at the end of Ex. A which runs as follows: These properties ought to be sold after issue of sale proclamation subject to the mortgage deed, dated 1 August, 1913 and executed in favour of Daso Pollayi (the present plaintiff) for Rs. 3,000 - this is admittedly a mistake for Rs. 5,000. Except as regards item No. 2 specified in the certificate of the Registrar, that is the mortgage deed for Rs. 3,000, the remaining items Nos. 3, 4, 5 and 6 were executed fraudulently and without any consideration whatever.

(3.) A similar note appears at the end of the bidders list also - see Ex. A-1. The sale of the property was fixed for 12 July, 1920, on which date the plaintiff put in a claim petition, E.A. No. 81 of 1920 (Ex. II), in which he stated that the suit mortgage bond of 1913 had been fully discharged by means of a registered sale deed, Ex. I, dated 10 September, 1919, for Rs. 8,000 under which he became the absolute owner of the property and that he has been in possession and enjoyment of the same ever since the sale - see paragraph 3 of Ex. II. This claim petition was dismissed on 12 July, 1920, because it was filed too late. On the same day, the property was purchased by Bennu Nahko, the decree-holder in O.S. No. 59 of 1919. Ex. III is the sale certificate issued to him. The plaintiff did not institute a suit to establish his right to the property within a year from the date of the order, and so the order made against him became conclusive under Order 21, Rule 63, Civil Procedure Code. In 1923 Bennu Nahko, the decree-holder-purchaser of the suit property, filed O.S. No. 131 of 1923 in the Berhampore District Munsif's Court for recovery of mesne profits of the lands purchased by him in Court auction. In this suit the plaintiff was the 10 defendant and he resisted it on the ground that some of the lands purchased by Bennu Nahko were his property by virtue of the sale deed Ex. I. The learned District Munsif held that inasmuch as the plaintiff's claim based on the sale was dismissed and he did not bring a suit within a year to set aside the order, he lost his right wider the sale deed and was debarred from claiming the property any longer - Ex. IV. This finding was upheld on appeal by the learned Subordinate Judge - Ex. V. Having lost his rights under the sale deed by his own default, the plaintiff instituted the present suit on 14th, October, 1926, to recover the money due under the mortgage bond, dated 1st August, 1913.