NORENDER NARAIN SINGH Vs. DWARKA LAL MUNDUR

JUDGEMENT

(1.) THIS is an appeal in a suit brought by the heirs of Rajah Tek Narain Singh against certain parties, who may be described as the family of Dass, forming one set of Defendants, and persons called Mundur, who formed another set, the latter being purchasers of the property in question from the Dasses. The suit was brought for possession and for registration of names, (as stated in the plaint,) "with respect to 3 annas 7 gundas 3 cowries 1 krant out of 5 annas 3 gundas 1 cowrie 1 krant, of mouzah Dooram Mudeh-poora 'usli' with 'dakhili' pergunnah Nesingpore Koora, the property referred to in the deed of conditional sale, after deducting 1 anna 15 gundas 2 cowries, the right and interest of Sri Narain Dass, Bachee Lal Dass, Rajah Ram Dass, Muhtab Dass, alias Laljee Dass, and Chunehal Kishore Dass, purchased by your petitioner's ancestor, and the right and interest of Shanker Batti purchased at auction on the 10th of January, 1868, subsequent to acquiring the deed of conditional purchase, at an execution sale by your Petitioner." The conclusion of the plaint is: "Since the principal and interest of the mortgage was neither deposited nor paid by the vendors pursuant to the terms of the mortgage bond, the foreclosure in accordance with the Regulation XVII. of 1806, was formally effected in the Judge's Court at Bhaugulpore, by a proceeding dated the 23rd of June, 1867, and the period of one year fixed by the above law expired on the 27th February, 1868, and within that period the amount entered in the bond and interest were not paid, and the conditional sale aforesaid became absolute on the 27th of February, 1868, corresponding with the 19th Fal-goon 1275 F.S., and the cause of action for possession and mesne profit arose from the same date."

(2.) THE action, therefore, is brought after proceedings for foreclosure had been taken upon the deed of conditional sale referred to in the plaint, and to give effect to those proceedings. This deed is dated the 30th of November, 1858; it is from numerous members of the family of Dass, in all 19; the deed states that they had " sold and transferred all and every the 5 annas 3 gundas 1 cowrie 1 krant of the entire 16 annas original with dependencies in mouzah Dorum Mudehpoora" in lieu of Rs. 5000, which had been advanced by Rajah Teh Narain Singh. The further statement is, " We have received the consideration money in full in one lump sum in cash from the said vendee, and brought the same into our . possession and enjoyment. We execute this deed of conditional sale for two years in lieu of the said consideration, and delivering it to the vendee hereby declare and give in writing that the said vendee shall enter into possession and occupancy of the property sold by right of purchase as proprietor. We promise that in the space of two years from the date of this deed of sale we shall pay the consideration money in question in cash in one lump sum to the vendee aforesaid, and take this deed of sale back. . In case we do not repay the consideration in question the vendee shall, after the expiration of the time, be at liberty to foreclose and complete the sale under the provisions of Regulation XVII. of 1806, A.D., and enter into possession and occupancy of the property sold, and to have his own name registered in the Government Records in the column of proprietor."

(3.) THE first question which arises (being the question upon which the High Court have decided the case in favour of the Defendants) is whether the directions in that section have been fulfilled. The High Court held that there was no sufficient proof of notification made to the Defendants of the petition of the Plaintiffs claiming foreclosure, and, that being the question, it will be right to look at the terms of the 8th clause. The enactment is, "Whenever the receiver or holder of a deed of mortgage and conditional sale, such as is described in the preamble and preceding sections of this regulation, may be desirous of foreclosing the mortgage, and rendering the sale conclusive on the expiration of the stipulated period, or at any time subsequent before the sum lent is repaid, he shall (after demanding payment from the borrower or his representative) apply for that purpose by a written petition, to be presented by himself or by one of the authorized vakeels of the Court to the Judge of the zillah or city in which the mortgaged land or other property may be situated. The Judge, on receiving such written application, shall cause the mortgagor or his legal representative to be furnished as soon as possible with a copy of it, and shall at the same time notify to him by a perwannah, under his seal and official signature, that if he shall not redeem the property mortgaged in the manner provided for by the foregoing section within one year from the date of the notification, the mortgage will be finally foreclosed, and the conditional sale will become conclusive."