NILAKANT BANERJI Vs. SURESH CHANDRA MULLICK

JUDGEMENT

(1.) IN this case the appellant was the plaintiff and the Respondents were the defendants in the first Court. The case raised between them was of this nature: In the month of October 1866, the plaintiff advanced money to the representatives of one Ashutosh Deb on mortgage of his estate. There was a further charge afterwards, and the total amount advanced was Rs; 30,000. In the month of December 1866 a writ of fieri facias was issued by some creditors of Ashutosh Deb upon a decree obtained by them prior to the mortgage. It does not appear at what date the seizure was effected under that fieri facias, but the Sheriff sold the property mortgaged, amongst other property, in the month of July 1867, and the portion now in dispute was purchased by one Khogendra Nath Mullick. The present respondents claim under Khogendra, but the issues in the suit have not been varied by the transmission of title, and the matter may be treated in precisely the same way as if Khogendra was himself before the Court. In the meantime, before the sale in July 1867, and in the month of June 1867, the plaintiff had instituted a suit in the ordinary form for the realisation of his mortgage by foreclosure or sale. When he learnt of the purchase by Khogendra he applied to the Court to make Khogendra a party to the suit as a person having an interest in the mortgaged property.

(2.) SUPPOSING the doctrine of lis perdens did not apply to this case, which, may be arguable, that was, prima facie at all events, a right thing to do. An order was made by Mr. Justice Macpherson in the High Court, adding Khogendra as a party to the suit, and directing an amendment in the prayer of the plaint1 accordingly. When Khogendra was brought before the Court he put in a plea or written statement by which he claimed a title paramount to the mortgage. We have not got that written statement before us. We have only got statements of it by the Courts below. The Subordinate Judge says of it: "Khogendra Nath having entered appearance, raised divers other questions adverse to the plaintiff's title. He, however, did not set up a defence as claiming through the mortgagors." The High Court makes a similar statement of Khogendra's position. So that the result was this, that Khogendra, being brought there as having purchased subsequent to the mortgage, sets up a paramount title, and does not accept his position as a person who is either to redeem or be foreclosed, upon that defence being raised the case came on for settlement of issues before Mr. Justice Markby, and he, finding a defence raised which was quite foreign to a mortgage suit, considered that he had no option but to dismiss Khogendra, which he did with costs. It may be mentioned that there were several other purchasers of other portions of the mortgaged property who were made parties, and who also alleged paramount titles in themselves, so that the suit would have been multifarious and confused in the highest degree if it had gone on in that shape. They were all dismissed with costs. The High Court then went on to make the ordinary decree for mortgage accounts and for sale in default of redemption. It appeared to one of the dismissed defendants, the Subordinate Judge states that it was Khogendra himself, that the ordinary' decree was calculated to prejudice the paramount title which he claimed. While it was being drawn up, he appeared to contest it, and persuaded the Court to vary its terms in a way which he thought to be more favourable to himself. In the month of September 1880 the property now in suit was put up to sale, and the mortgagee himself, the plaintiff, purchased the equity of redemption for Rs, 1,600. At that time Khogendra was in possession. It is to be presumed that he got it under the Sheriff's sale, but it is not exactly known how he got it; and why the plaintiff did not then sue him for possession does not appear. There was considerable delay in bringing this suit for possession, but it has been held in both Courts that the delay is not such as attracts the law of limitation. Therefore the suit may be brought and the legal questions are just the same as if it were brought the day after the plaintiff purchased.

(3.) ALL the issues raised by the defendants, excepting the right to redeem if it can be said they have raised that issue, have been found against them; or in other words, it has been found that the preferential title which they alleged but did not disclose in the suit of 1867, is an entirely false and fictitious title, and that Khogendra, so far from being improperly made a party to that suit, was a person who had a right of redemption and no other right at all. If the truth had been known when the matter was before Mr. Justice Markby in the suit of 1867, it is clear he would have held either that Khogendra was rightly a party to that suit, or was not so simply because he had purchased pendente lite, and that in either case the decree must go against him, that when the mortgage accounts had been taken he must redeem or be bound by the sale.