J C GALSTAUN Vs. SONATAN PAL

JUDGEMENT

(1.) This is an appeal against the judgment and decree of the Subordinate Judge, 2nd Court of Dacca, by the plaintiff. The suit was brought for the purpose of enforcing a mortgage by deposit of title-deeds of certain properties at Gopechur made by one J.B. Sookias in favour of the plaintiff on the 22nd May, 1914. The plaintiff's case is that he had been advancing money to J.B. Sookias for the purpose of carrying on business in jute and this transaction commenced some time in 1906. On the 12 March, 1912, there was an adjustment of the account of the money due to the plaintiff from J.B. Sookias and this adjustment was made of the dues up to the 30 October, 1911, when Rs. 75,000 odd was found to be due to plaintiff from J.B. Sookias and Sookias acknowledged his liability to pay that sum with interest at 10 per cent. per annum with six monthly rests affixing his signature to the account made up on the 12th March, 1912. It was stated that this account with Sookias was kept in abeyance by the plaintiff, by which term it appears the parties meant that no further advance of money would be made to Sookias which would be debited in that account. Sookias used to carry on his business at a place called Nabigunge at that time. On the 15 September, 1913, J.B. Sookias purchased some lands which are described as Gopachur property for Rs. 9,800. Gopechur is about 2 or 3 miles distant from Nabiguuge and he transferred his business to that place. The plaintiff then alleges that; a second account was opened between him and J.B. Sookias on the 26 November, 1913, and then, on the 22nd May, 1914, J.B. Sookias deposited his title deeds with regard to the Gopachur property with the plaintiff in Calcutta as security for the debts he then owed the plaintiffs as well as for future advances. Then, it is alleged that on the 30 June, 1914, Sookias gave the plaintiff a memorandum with regard to this deposit of title- deeds, and this document has been described as a letter of hypothecation. Then, in 1916, J.B. Sookias fell ill and was in hospital in Calcutta. When he was in hospital the plaintiff states that on the 3 July, 1916, adjustments were made with regard to both the accounts that he had with Sookias which were made up till the 30 June, 1916. It was alleged that on the first account Rs. 1,27,000 and odd was due to the plaintiff and with regard to the second account Rs. 45,000, and odd was due by the plaintiff to J.B. Sookias. Sookias acknowledged these adjustments on that day and put his signature to the accounts in acknowledgment of his liability. J.B. Sookias died on the 6 August, 1916 and the plaintiff brings this suit for the enforcement of the mortgage which was alleged to have been made by Sookias on the 22nd May, 1914.

(2.) The defendants Nos. 1 and 4 represent the estate of J.B. Sookias, the defendant No. 1, being the minor son of Sookias represented by his grand-mother, defendant No. 4, who has taken Letters of Administration to the Estate of J.B. Sookias. The defendant No. 2 was a creditor of Sookias who had attached the disputed property in execution of his decree for money and had sold it in execution, the purchaser being the defendant No. 3.

(3.) It is alleged that defendant No. 2 was made a, party as the sale in execution of his decree had not been confirmed when the suit was brought. The suit was contested by the defendant No. 3 alone. The defendant No. 2 alleged that he had been unnecessarily joined as a party and he only asked for his costs. The other defendants Nos. 1 and 4 appeared, but did not contest the suit and they admitted the claim of the plaintiff. Defendant No. 3 only appears in this Court to contest the