JAGANNATH MARWARI Vs. KALACHAND BANERJEE

JUDGEMENT

(1.) This appeal is preferred by the defendants. The material facts of the ease are these: In February 1913, one Tara Prasanna Bose and his wife executed a mortgage for the sum of Rs. 40,000 in favour of the first defendant Jagannath Marwari. The mortgage was by way of a Kat- kobala and the mortgagee Jagannath Marwari was acting for himself and for one Bepin Behari Banerji the second defendant. The mortgage related to three pieces of property. Two years later, these mortgagees instituted a suit on the document adding one Kedar Nath Marwari as a defendant because he had some interest in one of the properties. It is unnecessary, however, to refer again to Kedar Nath's interest. Tara Prasanna Bose and his wife, after making two applications for time, put in, on the 6 of March 1915, a petition of compromise with the mortgagees undertaking to pay the interest that might accrue due on the principal amount within the month of Chaitra every year and securing in return the advantage that time should be extended up to the end of 1326 B.S. for payment of the whole debt in the event of their fulfilling this promise to pay the interest regularly. They agreed also that, if they failed to pay such interest within the time stipulated, the mortgagees would be entitled to foreclose the mortgage. This petition was filed in March 1915. The suit, however, was not disposed of because of the contest with Kedar Nath Marwari. On the 7 September 1915, Tara Prasanna Bose died and he was succeeded by his only son Amulya Krishna Bose. This Amulya Krishna Bose had previously before the institution of the suit even, been adjudicated an insolvent in another Court at Bankura and a receiver had been appointed with regard to his property. This Amulya ratified the deed of compromise executed by his parents and a decree was passed thereon on the 15 March, 1916. In the proceedings subsequent to the death of Tara Prasanna, the receiver appointed in Amulya's insolvency case was not made a party. Shortly after the passing of the decree, the receiver entered appearance before the Judge and put in two applications asking that he should be made a party to the suit, that the suit should be tried in his presence and so forth. Meanwhile, Amulya and his mother failed to pay the interest as stipulated and the Court was then asked to make a decree for foreclosure). The petitions filed by the receiver were dealt with by the learned Judge in his judgment dated the 31st August 1916 and were rejected and a decree for foreclosure was made. In accordance with that decree, the mortgagees obtained delivery of possession. There were certain other proceedings-one of them being that there was an appeal by the receiver to this Court. Finally, the present suit was instituted on the 10 March 1919. The learned Subordinate Judge has decreed the suit. He has held that the decision of his predecessor dated the 31 August 1916, granting a foreclosure decree to the mortgagees is bad and, in accordance with that view, he has given the receiver an opportunity of redeeming the mortgage.

(2.) On behalf of the mortgagees who are the appellants before us numerous points have been taken. Two of them appear to me to stand out very prominently, and, with regard to these two, we asked the learned pleader for the respondent whether he could support the learned Judge's judgment. The two points are these: First, that the appellants being secured creditors are in a privileged position under the provisions of Section 16, Clause (5) of the Provincial Insolvency Act, and, secondly, that the circumstances do not disclose any ground for a Judge of concurrent jurisdiction to reverse the decision of his predecessor.

(3.) I do not propose, however, to deal with the second ground, because, to my mind, the appellants are entitled to succeed on the first ground.