RAI BAHADUR BANSIDHAR DHANDHANIA Vs. HAZARI RAM MARWARI

JUDGEMENT

(1.) The simple question involved in this appeal 13, whether a mortgage-decree for sale obtained by the appellants against Jai Krishna Barham and others hereinafter called the Barhams can be set off against a decree in favour of the latter against Kedar Nath, Musammat Teji Bibi and Nopechand Marwari, three out of sixteen appellants and which decree is now held by Hazari Earn Marwari and others, respondents 1 party, as transferees from the Barhams. The learned Subordinate Judge has answered this in the negative and hence the appeal.

(2.) The facts are rather complicated and long; and relate to a protracted and complicated litigation extending over a period of about thirty years. I shall however confine myself to only those of them which are relevant to the determination of the present appeal.

(3.) One Thakur Barham now represented by the Barhams was the owner of a fairly big estate called Patsanda in the district of Santhal Parganas. He seems to have borrowed, money rather recklessly and by the year 1902 became hopelessly involved in debt By that time 10 annas out of 16 annas of the estate had already become mortgaged and besides this there were several simple money decrees against him. Two of these decrees-one for Rs. 21,702 and another for Rs. 4,522 were in favour of one Gobardhan Das a member of the family of Kedar Nath, one of the appellants. The decree-holder proceeded to execute them. Thakur Barham succeeded in obtaining a stay order from the Calcutta High Court pending the hearing of his appeals against the decrees on giving security for carrying out the decrees of the High Court by hypothecating three annas out of the unencumbered six annas share of the estate. He gave two annas in security, against the first decree and one anna as against the second decree. This wag on 10 November, 1902. In the meantime several other persons holding money decrees against Thakur Barham proceeded almost simultaneously to execute them against the six annas which was free from mortgage, except that 3 annas of it which was subject to the two security bonds and it was sold in execution of one of these decrees which was in favour of one Jiban Ram. Unfortunately by some mistake the writ of attachment, issued in execution of this decree, instead of describing the six annas as unencumbered actually described it as encumbered. The Subordinate Judge, however, proceeded to sell and did sell the unencumbered six annas subject however to the two charges under two security bonds already referred, to. He seems to have held that the word "encumbered" was a clerical mistake for "unencumbered". The sale took place on 27 July, 1904, and the property was purchased for Rs. 1,12,000 by three sets of persons (hereinafter called auction- purchasers) in the following shares: 3. The sale proceeds Were rateably distributed among the various decree-holders. The auction-purchasers obtained delivery of possession on 25 December, 1901. By that time the security bonds subject to which the property was sold had become payable as Thakur Barham's appeal was dismissed by the Calcutta High Court; the auction- purchasers paid Rs. 34,000 to Gobardhan Das on the 21 of May, 1905, in discharge of the two security bonds. Objections had, however, been raised by Thakur Barham at the time of the issue of sale certificate in favour of the auction-purchasers to the effect that the. share sold was not the unencumbered six annas, but the six annas out of ten annas which was encumbered. The objection was overruled by the Subordinate Judge and the Calcutta High Court, but on appeal to the Privy Council their Lordships, on 25 November, 1913, set aside the entire sale, vide Raja Thakur Barmha V/s. Jiban Ram Marwari 21 Ind. Cas. 936 : 41 c. 590 : 18 C.W.N. 313 : 15 M.L.T. 137 : 12 A.L.J. 156 : 26 M.L.J. 89 : 16 Bom. L.R. 156 : (1914) M.W.N. 118 : 41 I.A. 38 (P.C.). Thakur Barham had died in 1906 and was succeeded by the Berhams and in the meantime Qamaruddin and others (hereinafter called the Mandals had obtained from them 3? annas out of six annas of the estate which was the subject-matter of the litigation. When the Privy Council set aside the sale, proceedings for restitution with mesne profits were started on behalf of the Barhams and the Mandals. It is unnecessary to describe in detail the course of triangular fight which lasted for more than ten years. Not only was there litigation between Barhams and the auction- purchasers but also between Barhams and Mandals. The Mandals wanted restitution of 3 1/2 annas out of six annas of the estate to them on the basis of their being; transferees of that share from the Mandals, This was disputed by the latter. The auction-purchasers objected to the restitution. They wanted refund of the purchase-money and of the Rs. 34,000 which they had paid to Gobardhan in satisfaction of the charge subject to which the property was sold and contended that as Chaturi, one of the auction-purchasers, had died before the order of the Privy Council, restitution to the extent of his share (6 pies) could not be granted. Without giving the detail of the course of this litigation it is- sufficient to state that it ended in the following manner. It was held: (1) That the decree-holders among whom the purchase-money had been rateably distributed were not liable to refund it. (2) That the auction purchasers should bring a separate suit for the realization of Rs. 34,000 which they had paid towards, the discharge of the two security bonds in favour of Gobardhan Das. (3) That 6 pies share of the auction-purchaser Chaturi Ram was not affected by the order of the Privy Council and the restitution could not be granted in respect of it. (4) That the auction-purchasers were entitled to get a set-off of their purchase money against the mesne profits of the period of their possession: see Kedar Nath Marwari V/s. Jai Berhma 37 Ind. Cas. 863 : (1917) Pat. 153 : 5 P.L.W. 238 for the judgment of the High Court and Jai Berhma V/s. Kedar Nath Marwari 69 Ind. Cas. 278 : 4 P.L.T. 61 : A.I.R. 1922 P.C. 269 : 32 M.L.T. 10 : 37 C.L.J. 351 : 27 C.W.N. 582 : 41 M.L.J. 735 : 21 A.L.J. 490 : 25 Bom. L.R. 643 : (1922) M.W.N. 368 : 2 Pat. 10 : 18 L.W. 802 : 49 I.A. 351 (P.C.)for that of the Privy Council in appeal from this court.