CHOTESHA Vs. MT. MAKTUM BI

JUDGEMENT

(1.) (The judgment after stating facts as above proceeded). It is unnecessary here to repeat the various transfers and assignments by which the three defendant-appellants are now in possession of the whole of the mortgaged property. It will suffice to say that defendant-appellant 1 holds 10-annas 6-pies of the property, defendant 2 holds 2-annas 8-pies, and defendant 3 2-annas-10 pies, and that the subjects have been in possession of the defendants from 1901, 1904 and 1905 onwards.

(2.) A novel contention has been raised on behalf of the appellants that they can only be held liable to account from the dates on which they entered into possession of the various portions of the mortgaged property, and that the mortgagee, although he now holds no interest whatever in the property, should be held liable to account for profits for the period before the present transferees or assignees entered into possession. It is true that, as was explained by Teunon and Richardson, JJ, in Shafikul Huq v. Krishna [1918] 28 C.L.J. 77 the Transfer of Property Act is not exhaustive and does not contain the whole law on the subject of transfer of property. It has been argued on behalf of the appellants that no special provision exists in the Transfer of Property Act by which, in what has been termed by the pleader for the appellants, a suit for accounts, the parties liable to be impleaded have been specifically laid down. In support of this position we have been referred to certain passages in Fisher's Law of Mortgage, 6th Edn. Paras 1690 and 1707. In the former paragraph it is stated that where the mortgagee has assigned the whole benefit of his security, having previously been in possession, and the mortgagor seeks an account of an over plus alleged to have been received, the mortgagee, notwithstanding his assignment, must be joined with the assignee, in order that he may account for what he received in his time. In the latter paragraph quoted an observation is made that, if redemption is sought after a great length of time, or the dismissal of a former action to redeem, or several assignments, the account against an assignee in possession will be taken only from the time of his purchase prior to which the profits will be set against the interest.

(3.) THE next point urged on behalf of the appellants is that the lower Court wrongly exercised its discretion in refusing to allow the defendant-appellants to examine certain witnesses at a late stage of the case, as also to produce certain documents and accounts. The history of this bitterly contested suit is clear from the order-sheet of the first Court. The suit was filed on 19th July 1922 and was decided on 23rd December 1924. After the case had been fixed for argument on 9th December 1924, an application was filed on behalf of defendants 1 and 2 praying for the addition of one Kanhaiyalal and his heirs as a party as well as for permission to cite one Ramchandra as witness. A reference, however, to the order-sheet will show that, on 7th August 1924, Ramchandra who had been served with summons was absent, but the pleader for the defendants, although offered a warrant of arrest against him, refused to avail himself of it and preferred to take out a fresh summons against him. He was warned at the time that he would take up this course of action at his own risk, and accordingly, on 2nd December 1924, Ramchandra remained absent. In the circumstances of the case we think the Judge of the first Court was perfectly entitled to exercise the discretion he did, and indeed, in our opinion, he would have exercised a wrong discretion in practically allowing the case to be re-opened at the stage it had reached on 9th December 1924. Even had this not been so, this Court will not in second appeal interfere with a discretion which would appear to have been reasonable, and deliberately exercised by the lower Court. Moreover the learned District Judge has also considered this question and found it against the present defendant-appellants. We are also of opinion in the same connexion that the lower Court's order of 22nd November 1923, in refusing to admit a fresh set of documents which could have been equally produced long before, was a proper and just one in the circumstances of the case. The issues had been framed no less than four months before, and there is every reason to suppose that these repeated applications for admitting at an abnormally late stage evidence which could have been equally well produced at the proper time were little less than vexatious and made with the object of delaying disposal of the suit. The decision in Moni Lal Bandopadhya v. Khiroda Dasi [1893] 20 Cal. 740 has no application whatever to the facts of the present case as a glance thereat will show. We see no reason, therefore, to interfere with the finding of the lower appellate Court as regards the evidence in question having been properly excluded.