MOHAN SARDAR Vs. HEM CHANDRA MANDAL

JUDGEMENT

(1.) The facts involved in this appeal, shortly stated are as follows:

(2.) One Kushai Sardar for himself and as guardian of his nephew who was then a minor, being defendant 2 and one Amrita Sardarni, as mother and guardian of a minor son, being defendant 3, executed a mortgage in favour of one Nafar Chandra Mandal on 17 Ashar 1310, for a sum of Rs. 525. Kushai had a brother named Kunai, who is dead, and and defendant 2 is the son of Kunai. Defendant 3 is the son of one Gadai who was another son of Kunai. The original mortgagee died sometime ago leaving him surviving his three sons being plaintiffs 1,2 and 3. The plaintiffs including one Poran plaintiff 4 brought a suit on the mortgage on or about 20 February 1918, the total claim being laid at Rs. 997. Defendant 4, Nitai Mandal, was added as a party defendant as the subsequent purchaser of an 8 anna share in the mortgaged premises from defendants 2 and3.

(3.) The suit came on for hearing before the Munsif at Khatra and by his judgment dated 12th February 1919, the learned Munsif decreed the suit with costs, i.e., passed a preliminary decree on the mortgage. There was appeal to the Subordinate Judge of Bankura but the appeal was dismissed with costs on 23 January 1920. Thereafter an application was made for a final decree and it appears that on 26 August 1922 an ex parte order was made by which the preliminary mortgage decree was made final and absolute. Subsequently it was sought to set aside the exparte order of 26 August 1922, on the ground that no notice had been served upon the defendants before the final decree was passed and that one of the plaintiffs namely Poran Mandal had died in Pous 1328 and one of the judgment-debtors had died in Ashar 1328, and that, therefore, the suit itself had abated under Order 22, Rule 4, Civil P.C. The matter came before the learned Munsif on 29 March 1923, and by his order of that date the learned Munsif refused to set aside the previous order of 26 August 1922. There was an appeal against the last mentioned order and it appeared that substitutions had been made in the records in places of the deceased plaintiff and the deceased defendant on a date which was beyond the usual period of three months from the deaths in question. The learned Subordinate Judge by his order dated 30 July 1923, allowed the appeal and sent the matter back to the Court of first instance for retrial of the plaintiffs application for substitution and final decree. Thereafter the matter having come back to the learned Munsif, the latter by his order dated 29 March 1924 held that the prayer for substitution could not be granted and that the suit having abated should be dismissed. The ground of this decision was that no substitution had been made in place of the deceased plaintiff, Poran Mandal, within three months from the date of his death. There was appeal to the Subordinate Judge of Bankura against the last mentioned decision and that officer held by his judgment dated 28 February 1925, that so far as the plaintiffs were concerned, the claim had not abated in the circumstances of the case, and that so far as the defendants were concerned their liability remained intact at any rate to the extent of 5/6 share. The result was that according to the learned Subordinate Judge, the order of abatement was set aside and a final decree passed to the extent of a 5/6 share in the mortgaged premises.