HAZARIMULL HIRALAL Vs. SADASUKH PARRACK AND CO

JUDGEMENT

(1.) The facts giving rise to the present application on behalf of the lessors of premises Nos. 123, 124, 125, 125 and 126/1, Canning Street, and 4, and 5, Jackson Lane in the town of Calcutta under an indenture of lease dated the February 16th, 1920, for an order that the Official Receiver of this Court, who is the receiver in this suit, of the said leasehold properties, should make over possession to the said lessors, are as follows: It appears that by the indenture of lease dated the 16 February, 1920, one Sumermull Parruck was granted a lease of the said premises for a period of 41 years from the 1 January, 1918, and that one of the conditions in the said indenture was that if the said lessee or any of his heirs, executors, administrators or assigns becomes insolvent or bankrupt, it should be lawful for the lessors to re- enter the demised premises at any time thereafter and to re-possess and enjoy the same. By an indenture of mortgage dated the 3 October, 1921, the lessee mortgaged the leasehold interest in the said properties to the plaintiffs Hazarimull Hiralal. The plaintiffs thereupon brought a suit on the 23 June, 1922, to enforce their mortgage. The preliminary decree in the mortgage suit was made on the 16th August, 1922, and the Official Receiver was appointed receiver of the mortgaged premises on the same date.

(2.) The lessee Sumermull Parruck died intestate on or about the 27 November, 1922, leaving the present defendants his sole legal heirs and representatives and leaving, among others, a business carried on under the name and style of Sumermull Parruck and Panna Lal Parruck, and the said leasehold premises as his properties. The final decree for sale in the mortgage suit was made on the 5 May, 1924, and the properties comprised in the said mortgage were subsequently purchased by the mortgagees namely, the plaintiffs. On the 24th February, 1925, the firm of Sumermull Parruck and Panna Lal Parruck were adjudicated as insolvents.

(3.) It is contended now on behalf of the lessors that the effect of the adjudication order was to vest in the Official Assignee the properties of the said Sumermull Parruck and that owing to such insolvency there has been a forfeiture of the lease, in which the said Sumarmull Parruck and after his death the defendants as heirs of the said Sumermull Parruck were interested. The lessors now want an order that the Official Receiver who is in possession of the premises should make over possession thereof to them. The application is urged because it is said that the lessors have a paramount title and that therefore they can come into this suit and ask for art order pro interesse suo see in this connexion my judgment in Sreedhar Chaudhury v. Nilmoni Chaudhury .