SATYANARAYAN BANERJI Vs. KALYANI PROSAD SINGH DEO BAHADUR

JUDGEMENT

(1.) This appeal arises out of certain proceedings in execution of a mortgage decree, and is directed against an order of the Subordinate Judge of Asansol, dated 12 June 1942, in Miscellaneous case NO. 106 of 1941, dismissing the appellants objections to the sale held in execution of that decree. The mortgagors were two persons, S, H. Seddon and Rasaraj Biswas, who carried on business in co-partnership under the name and style of S. H. Seddon & Co., but they are not the appellants before us. The appellants are two joint Receivers of the said partnership business the assets of which included the mortgaged properties, having been appointed as such in a suit on the Original Side of this Court for dissolution of the partnership. The objections raised to the sale were partly under Order 21, Rule 90, and partly under Section 47, Civil P. C. In-so far as they fell under the first category, the learned Judge held that they were time-barred, and also that the appellants had failed to substantiate them, while as regards the other objections, he held inter alia that the appellants had no locus standi to maintain the same, as they were neither parties to the suit nor their representatives within the meaning of Section 47 of the Code. In the result, he dismissed the objections in their entirety.

(2.) The material facts of the case may be shortly stated: On 31 March 1921, the mortgagors abovenamed, S. H. Seddon and Rasaraj <JGN>Biswas</JGN> , executed a mortgage in favour of Mugniram Bangur and Kedar Nath Daga for a sum of Rs. 10 lakhs in respect of their 14 annas interest in certain coal lands in the districts of Manbhum and Burdwan, stipulating to pay interest at the rate of 7 per cent, per annum with six-monthly rests. By an indenture of the same date they also assigned their remaining 2 annas interest in the properties to the mortgagees. On 4th September 1922, the mortgagees instituted a suit in the Court of the Subordinate Judge of Asansol to enforce the mortgage, and also for a declaration of their title to the 2 annas share which had been assigned to them. On 3 July 1923, a preliminary decree was passed in the suit for a sum of Rs. 10,64,296-3-0, including interest and costs, on the basis of a compromise, one of the terms of which was that the name of defendant 2, Rasaraj <JGN>Biswas</JGN> , should be expunged from the record and the suit dismissed against him. As a result, the decree was made only against the other defendant, S. H. Seddon. The plaintiffs title to the 2 annas share was also declared as claimed.

(3.) Meanwhile, it appears that on 24 March 1923, while the mortgage suit was pending, one Sasthi Kinkar Banerjee instituted a suit on the Original Side of the High Court (Suit No. 908 of 1923), claiming a 4 annas share in the partnership business of S. H. Seddon & Co., and praying for a dissolution of the partnership and for accounts. On 10 April 1923, a decree was made in the suit, also on compromise, by which the partnership was dissolved and accounts were ordered to be taken on the footing that Sasthi Kinkar Banerjee was entitled to the 4 annas share as claimed. By the decree certain persons were appointed joint Receivers of the partnership assets, which, as already stated, included the properties covered by the mortgage in favour of Mungniram Bangur and Kedar Nath Daga. The joint Receivers were these two mortgagees, besides one Satis Chandra Sen, a Solicitor of this Court, and two other persons, but it does not appear that the appointment of the mortgagees was made with their knowledge or consent. By a subsequent order made on 13 June 1923, the joint Receivers were in fact discharged, and in their place the said Satis Chandra Sen was appointed sole Receiver with the same powers and subject to the same conditions.