MONMOHAN RAY Vs. PUNYABRATA DAS

JUDGEMENT

(1.) This is an appeal from an order of the Subordinate Judge of Bhagalpur dismissing a petition of one Punyabrata Das purporting to be launched under Secs.47 and 151 and Order 9, Rule 13, Civil P.C., in the course of execution proceedings to set aside a final mortgage decree on the ground that the decree so passed was null and void, the main contention being that the decree had been passed against a dead man and that the suit in which the decree was passed had abated. The material facts are as follows: The petitioner, Punyabrata Das, who is the appellant before us, is the son of one of five brothers who were in turn the sons of one Ramlal Das. The petitioner's father died in circumstances which I will mention later in the year 1930. He had at one time a brother but that brother died long ago. The petitioner's father, the eldest of the five brothers, Babu Parmananda Das on 9 March 1910, entered into a marriage under the Special Marriage Act of 1872 and on 2 October, 1913 the appellant was born.

(2.) On 10 December 1913 the mortgage bond in question was executed by the appellant's father together with his four younger brothers and the appellant and the brother who has since died, they acting through their father as guardian. The mortgage was for, a sum of Rs. 4,500 with the object of satisfying certain family debts and the security given in the mortgage was a certain family house in Bhagalpur. Some time after that the appellant's father who seems to have been an invalid and apparently not responsible for his actions vanished and was afterwards found to have died at Hardwar on 25 May 1930.

(3.) In the year 1928, the mortgagee started a suit to enforce the mortgage. Various attempts were made to serve the appellant's father and after these attempts on 21 January 1929, the Court accepted the service which had been attempted as valid and there was an adjournment of the case until 31 January 1929, for the appointment of a guardian for the infant appellant. A certain pleader guardian, Babu Upendra Narain, was ultimately appointed but nevertheless, in spite of various pleadings that were put in amongst them a pleading by the pleader guardian that the loan was contracted by the father without necessity, a preliminary decree was passed on 28 May 1929. In the course of time there was an application for a decree absolute and on 5 July 1930, a final decree was drawn up.