GOBINDA CHANDRA PAL Vs. PULIN BEHARI BANNERJEE

JUDGEMENT

(1.) This appeal arises out of a suit for sale based on a simple mortgage bond. The bond was executed by Defendants Nos. 1 to 6 or their predecessors in favour of the plaintiff's father on the 21 June 1885. It was an instalment mortgage bond by which the executants promised to pay 191 maps of paddy at the rate of 7 maps per annum from the years 1293 to 1316 B.S. and the balance of 5 maps in the year 1317 B.S. The bond stipulated that in default of the payment of any one instalment the mortgagee would be entitled forthwith to realize the whole of the paddy then remaining due with interest at a certain rate. Subsequent to the execution of this bond and on the 7 June 1901, the mortgagors executed another mortgage bond in respect of the same mortgaged properties in favour of the plaintiffs mother the plaintiffs mother instituted a suit on the basis of this latter bond, obtained a decree and in execution of the decree the mortgaged properties were put up to sale and purchased by the Defendant No. 7 the plaintiffs case is that the instalments due for 1316 and 1317 were not paid and in the present suit the plaintiffs sought to enforce the mortgage by sale of the mortgaged properties for the said dues. The suit has been decreed by both the Courts below and the Defendants Nos. 1 to 5 and 7 have preferred the present appeal.

(2.) The first contention urged oh behalf of the appellants is to the effect that the plaintiffs are estopped from enforcing their mortgage in the present suit because this mortgage was not set out in the suit instituted by the plaintiffs mother against the mortgagors. It is said that the plaintiffs father conducted the suit on behalf of the plaintiffs mother, and by reason of the provisions of Order 34, Rule 12, Civil P.C., it was incumbent upon the plaintiffs mother in that suit to set out the mortgage upon which the present suit has been instituted, and that inasmuch as this mortgage was not set out in that suit the plaintiffs are estopped from putting forward their present claim. The finding of the Courts below is to the effect that the plaintiffs mother was not the benamidar of the plaintiffs father. That was a suit in which the plaintiffs father was not a party. It was not obligatory upon the plaintiffs mother in that suit to have set out this mortgage. Unless it could be shown on behalf of the appellants that there was a duty in the plaintiffs mother to have set out this mortgage either herself or through her agent who looked after the proceedings in that suit on her behalf the question of estoppel does not really arise.

(3.) A further argument was sought to be advanced with regard to this matter based on the lines upon which para 7 of the written statement of the defendants was worded, namely, it was allege 1 that by reason of the conduct of the plaintiffs father in connexion with the suit to which I have referred the Defendant No. 7 was misled into purchasing the properties; in other words, that plaintiffs father who though not a party to those proceedings was actually doing everything therein on behalf of his wife and he did not mention either in the proceedings or in the sale porclamation that there was this prior mortgage, and by reason of his conduct in this respect the Defendant No. 7 was misled and he purchased under the idea that there was no such mortgage. This line of defence though foreshadowed in the written statement does not appear to have been developed in any of the Courts below and indeed there was no materials upon the record upon which the appellants can urge this contention.