MRITUNJOY ROY Vs. NETAI CHAND DUTT

JUDGEMENT

(1.) This is an application on the part of the plaintiffs decree-holders and purchasers at the Registrar's sale held on 12 September 1942 for leave to pay in the balance of the purchase money after setting off the amount of their claim and costs and for confirmation of the sale and issue of the sale certificate in their favour and other incidental reliefs. The facts material for the purpose of this application are not in dispute and are as follows: On 2l July, 1936, the defendants Netai, Tarak and Barid executed a mortgage in favour of the plaintiffs to secure the repayment of the sum of us. 26,000 with interest thereon at 7-1/2 per cent, per annum with quarterly rests.

(2.) On 18 August 1936 two of the defendants, viz., Netai and Barid executed a second mortgage on their shares in the mortgaged property in favour of the plaintiffs to secure the repayment of the sum of RS. 2500 with interest thereon at 12 per cent, per annum with quarterly rests. On 11 August 1938 one of the defendants, viz., Netai executed a third mortgage on his share in the mortgage property in favour of defendant 4, Benode Behari Choudhury for the repayment of Rs. 1500 with interest thereon at 10 per cent, per annum. On 25 August 1938 the plaintiffs mortgagees instituted this suit on the two mortgages dated respectively 21 July 1936 and 18 August 1936 impleading Netai, Tarak and Barid as mortgagors defendants and Benode Behari Chou-dhuri as the puisne mortgagee defendant. On 10 February 1939, the usual preliminary decree was passed in this suit and on 2nd July 1941 the usual final decree for sale was passed. The Bengal Money-Lenders Act 1940 having come into operation in the meantime the mortgagors defendants applied for relief under that Act and the preliminary and final decrees passed in this suit were re-opened and a fresh preliminary decree was passed under the provisions of Bengal Money-Lenders Act on 14 July 1941 a copy of which is annexure "A" to the present petition. By Clause (1) of this new preliminary decree dated 14 July 1941 the Registrar was directed to take an account, amongst others, of what was due on that date to the plaintiffs for principal and interest on their two mortgages mentioned in the pleadings-such interest to be computed, subject to the Rule of Damduput if the same be applicable, at the rate of 8 per cent. per annum simple. By Clause (3) it was referred to the Taxing Officer of this Court to tax the plaintiffs their costs of this suit payable under the aforesaid decrees and also including the costs of and incidental to the applications which resulted in the reopening of the previous decrees and the passing of the new preliminary decree. Clause (4) of this decree declared that several parties were entitled to payment of the sums due to them in the following order, viz. (i) the plaintiffs and (ii) the defendant Benode Behari Choudhury. Clause (5) of this decree directed that the defendants or any one of them do pay into Court to the credit of this suit or to the plaintiffs such sums as may be found due in three equal annual instalments, the first of such instalments being payable within one month from the confirmation of the report of the Registrar and the taxed costs of the suit awarded to the plaintiffs and that the defendant Netai do pay into Court to the credit of this suit within the. time specified therein such sum as may be found due and the taxed costs of the suit awarded to the defendant Benode Behari Choudhury and that on payment of the amounts due to the plaintiffs by the defendants or any one of them in the manner prescribed above and on payment thereafter of the costs of the suit and other costs charges or expenses as may be payable under Rule 10 of Order 34, Civil P.C. the plaintiffs should bring into Court all documents in their possession or power relating to the mortgaged properties to be delivered to such person as the Court might direct and the plaintiffs should if so required reconvey or re-transfer the said property free from the said mortgages and from all encumbrances created by the plaintiffs or any person claiming under them. There was like direction on the defendant Netai and the defendant Benode Behari Choudhury in respect of the third mortgage. It will be noticed that under this paragraph all the defendants were directed to pay the whole amount due to the plaintiffs under both the mortgages and no separate directions were given for the payment of separate amounts by the respective mortgagors under the respective mortgages in favour of the plaintiffs.

(3.) Then by Clause (6) of this decree it was further ordered that in default of payment of any one of the said instalments or the aforesaid taxed costs the plaintiffs may apply to the Court after giving a month's notice to the defendant, for a final decree for sale of the mortgaged property subject to the provisions of the Bengal Money-Lenders Act, 1940, and on such application being granted the mortgaged property or a sufficient part thereof be directed to be sold. This Clause (6) further provides that in the event of such sale being held the moneys realised by such sale shall be paid into Court and be duly applied, after deduction of commission and expenses of sale, in payment of the amount or the balance thereof payable to the plaintiffs under this decree in respect of the mortgage dated 2l July, 1936 and under any further orders that may have been passed in this suit and in payment of the amount which may be adjudged due to the plaintiffs in respect of the costs of the suit and further costs charges and expenses and that the balance thereof, if any, be divided into three equal parts and that one of such equal parts shall be held subject to the further Order of this Court and that two of such equal parts shall be duly applied in payment of the amount payable to the plaintiffs under this decree in respect of the mortgage dated 18 August 1936 and that the then balance, if any, shall be held subject to the further Order of this Court. It will be noticed that under this part of Clause (6) the net sale proceeds were separately allocated to the two mortgages in favour of the plaintiffs and preserved l/3 of the balance left after satisfaction of the plaintiffs claims under mortgage 1 and the costs of this suit for the benefit of the defendant Tarak. Clauses 7 and 8 are not material for the purpose of this application. Clause 9 reserves liberty to the parties to apply to Court. On 5 September 1941, the Registrar made his report that on 14 July 1941 there was due to the plaintiffs a sum of Rs. 39,771-15-8 for principal and interest upto 14 July 1941 as set forth in the schedule annexed to the report. The schedule to the report shows that this sum of Rs. 39,771-15-8 is made up of Rs. 36,365- 5-0 for principal and interest due under Mortgage 1 dated 2l July, 1936 and Rupees 8406-10- 8 principal and interest due under mortgage 2 dated 18 August 1936.