MOHENDRA NATH BANERJEE Vs. RANI SRIMATI HARSHAMUKHI DASSI, EXECUTRIX TO THE ESTATE OF LATE RAJA MANINDRA CHANDRA SINHA

JUDGEMENT

(1.) This is an appeal by defendant No. 4 and arises out of a suit brought to enforce a mortgage security. It appears that defendants Nos. 1, 2 and 3 mortgaged six properties which are described as properties Nos. 1, 2, 3, 4, 4 ka and 5 to certain mortgagees who are defendants Nos. 10 to 14 in the suit. They borrowed a sum of Rs. 23,000 from defendants Nos. 10 to 14 and hypothecated the properties just mentioned. This mortgage was executed on June 7, 1924. Defendants Nos. 5 to 9 are purchasers of equity of redemption like defendant No. 4 who purchased at the certificate sale lot No. 1 on June 19, 1927. The plaintiff is an assignee of the mortgagee's right in five of the properties hypothecated, the deed of assignment being dated October 4, 1929. The defence of defendant No. 4 to the suit is to be found at page 21 of the first part of the paper book. He states that the plaintiff has no cause of action against the defendants, that the suit is not maintainable in the present form, that except what is admitted specifically in the written statement the defendant does not admit to be true any other statement in the plains that the defendant does not admit as true that the bond produced by the plaintiff was executed by the defendants Nos. 1, 2 and 3 and that the same was legally executed and attested, and that if such deed was executed, it cannot operate as a mortgage-deed. In para. 5 that defendant further states that if the plaintiff be considered as entitled to get any mortgage-decree then the defendant reserves his claim to redeem the property in his right by paying off the share of the mortgage amount in proportion to the value of his purchased properties. In the said paragraph the defendant stated further that if the plaintiff be entitled to get any mortgage decree, then the same should be realised from the properties in possession of the defendants Nos. 1, 2 and 3. In para. 6 it was stated that the plaintiff having discharged certain properties included in the document from the liability of the mortgage, she is not entitled in any way to get any mortgage decree as against the property of this defendant wherein he has got title. These substantially were the defences taken by defendant No. 4. The defence as he has been summed up by the learned Advocate for this defendant falls under three heads and those defences only need be noticed for. the purposes of the present appeal. It is stated that the defence centers round the question as to whether the assignee of the mortgagee's rights can proceed against properties Nos. 1 to 4-ka leaving out property No. 5. In the second place the defendants including defendant No. 4 contend that they are entitled t) redeem a proportionate part of the mortgage money. He also pleads that there should be a reduction of the mortgage-debts and the price of the mortgage property No. 5 which was purchased by the original mortgagee should be deducted from the mortgage money now due to the plaintiffs. These defences have all been negatived by the Subordinate Judge who has granted a preliminary mortgage-decree and directed that in the event of the nonpayment of the mortgage-money the properties Nos. 1 to 4-ka shall be sold.

(2.) Against this decree the present appeal has been brought and the defences which were summarised by the learned Advocate for the appellant have been repeated before us grounds in support of the appeal. It becomes necessary therefore to state a few salient facts in order to consider the soundness of the grounds taken before us, which are really covered by the defences which have already been set forth. It appears that the Port Canning Company who are the landlords in respect of property No. 5, obtained a decree for rent on June 3, 1923 for the years 1326 to 1328 B.S. The same company obtained a decree in the Rent Suit No. 50 of 1925, on February 3, 1926, and this was for the arrears of rent for the year 1331 B.S. The said company also obtained a rent decree suit No. 56 of 1926 for the rent of the year 1332, B.S. and that was on September 22, 1926. On January 8, 1927 the decree of the last mentioned suit No. 56 of 1926 was put in execution. The sale in pursuance of that decree took place on July 12, 1927. The sale fetched a price of Rs. 6,800 and the result was that lot No. 5 of the mortgaged properties was purchased by the original mortgagee in the benami of one Hari Das Daw. The ground taken with regard to this sale is that this was not a rent sale as the procedure laid down in Chap. XIV of the Bengal Tenancy Act was not complied with. The only ground on which this argument was rested in the Court below seems to be that the property was sold under the provisions of Section 163 (2) (6) of the Bengal Tenancy Act where as it ought to have been sold, under Section 163(2) (a) of the Act; and it was said in the Court below that this deference in procedure makes the sale not one under the Bengal Tenancy Act but a sale of right, title and interest of the judgment-debtor. This question is really covered by issue No. 5 which runs as follows: Whether the original mortgagees purchased mortgaged property No, 5 in execution of a rent decree free from all incumbrances in the Benami of Haridas Daw? If so, is it necessary to serve any notice under Section 167 of the Bengal Tenancy Act ?

(3.) Before us, however, a very difficult ground has been taken in addition to this ground which is indicated in the judgment of the Subordinate Judge and it has been said by Mr. Bhattacharjee who has argued very strenuously that the whole of the proceedings in execution of the rent decree shows that the decree which was being executed was not a decree in Rent Suit No. 56 of 1926 as alleged by the plaintiff in her plaint, but a decree in another Rent Suit namely suit No. 50 of 1928. This point was never raised in the Court below and it would not be right for us to allow this point to be raised for the first time being that the pleadings of defendant No. 4 which have already been referred to do not raise this point at all. It is no doubt true as appears from an examination of the several proceedings in connection with the attachment of the holding that some mistakes have crept in some of the execution papers. In Ex. 11, however, which is an application for execution of the decree, the suit number namely 56 of 1923 is rightly given and the property in arrears is rightly described in the Schedule as mokarari mourashi interest of the judgment-debtor and a prayer is made that the jama be attached and sold under the provisions of Section 163 (2) (a) of the Bengal Tenancy Act. Next we come to the order of attachment printed at p. 4.5 of the second part of the paper book. We find there a reference to the decree of Suit No. 50 of 1925 and not to the decree of Suit No. 56 of 1926. Similarly in the proclamation of sale of tenure or holding with power to annul incumbrances in Rent Execution Case No. 2 of 1927 printed at p. 48 of the second part of the paper book, reference is made to Rent Suit No. 50 of 1925. But it appears from the order sheet of these proceedings that the property was sold, In Rent Execution Case No. 2 of 1927 which refer undoubtedly to the suit of 1926. This surely is a point which ought to have been taken if there was any substance in it, in the Court below; and it ought to have been made the subject of an issue. It seems somewhat singular that although an application was made by the judgment-debtor under Order XXI, Rule 90 of the Civil P. C. to set aside the sale in execution of the decree which purported to be one in execution of Rent Suit No. 56 of 1926 no such ground appears to have been taken. It seems somewhat singular that if there was any substance in this point which goes materially to affect the sale and could form a good ground for proceeding under Order XXT, Rule 90, it would not have been taken before the District Judge. Of this point there is no mention in the written statement and the point was never agitated in the Court below. For these reasons we think that there is no substance in this point. Some mistake of form might have taken place which does not affect the merits and we should not allow this point to be raised in this Court.