GOURI CHURN PATNI Vs. SITA PATNI

JUDGEMENT

(1.) This is an appeal in a suit brought by the plaintiff to obtain possession of certain property against which a decree had been recovered on the basis of a mortgage executed by Paran Patni deceased.

(2.) The facts found are that, on the death of the mortgagor, his mother Sita remained in possession of the premises. His widow Chinta, however, against whom alone the decree was obtained after an interval of several years, had, meanwhile, re-married and left her husband's house. The Court of first instance gave the plaintiff a decree and directed him to be put in possession of the promises (which he had purchased in execution) by ejecting the mother of the deceased mortgagor. On appeal, the Subordinate Judge has reversed that decision and dismissed the plaintiff's suit basing his judgment, for the most part, on the provisions of the Hindu Widows Remarriage Act (XV of 1856).

(3.) In second appeal before us, four contentions have been advanced for the plaintiff, first, that the mortgage decree was passed against the widow Chinta who was the legal representative of the deceased mortgagor Paran; secondly, that if she was not the legal representative, nevertheless, the decree binds Sita, the mother of Paran, unless and until it is set aside, in other words, that the sale in execution of the decree is a voidable sale only; thirdly, that inasmuch as the mother (Sita) did not pursue her application under Section 332, Civil Procedure Code, she is bound by the result of it because she has not brought any suit as contemplated by the last paragraph of the section; and, lastly, that in any view of the case, Sita cannot retain possession of the mortgage premises without redeeming the same.