SURENDRA NATH CHOUDHURY Vs. BARISAL LOAN CO LTD

JUDGEMENT

(1.) The facts involved in this appeal, shortly stated, are as follows : Defendants 5 and 6 were the holders of a nimhowla right in a certain property described as property No. 1 under the howladar one Bepin Behary Ghose on the basis of a kabuliyat dated 13 Chaitra 1301 B.S. Bepin was defendant 49 in this suit and he died during the pendency of the suit. It appears that Bepin obtained a rent decree against defendants 5 and 6 and in execution of the said decree, he purchased the nimhowla in question on 15 April 1906. On 1 Chaitra 1314 B.S. corresponding with 14 March 1908, Bepin mortgaged property 1 and certain other properties to the plaintiff company. The date of repayment under the mortgage was some time in May 1908. On 12 March 1909, defendants 5 and 6 made an application under Order 21, Rule 90, Civil P.C., for setting aside the sale of the nimhowla. Meanwhile it appears that Bepin had instituted a rent suit against one Felu and others in respect of a Miras karsa under the Nimhowla and that in execution of the decree in the said rent suit, defendants 5 and 6 purchased the Miras karsa in question. On 10 April 1910, the said defendants 5 and 6 sold the Miras Kasra to one Purna Chandra Sen, who, it is said, was the benamidar of defendants 1 to 4. On 12 April 1910 the sale of the nimhowla in execution of the rent decree obtained by Bepin was set aside. It is said that it was set aside as a result of a compromise. In 1914, the plaintiff company brought a suit against Bepin on the mortgage and obtained a decree in execution of which the property in question was purchased by the company. It is stated that symbolical possession was taken by the plaintiff company. The plaintiff company brough a rent suit in 1921 against defendants 5 and 6 in respect of a Miras karsa held under the said nimhowla. The suit was dismissed.

(2.) The plaintiff company allege that they came to know for the first time in that suit in 1921 that on 14 April 1910, the sale of the nimhowla in execution of the rent decree referred to above had been set aside. The plaintiff company was not made a party to the proceedings for the setting aside of the sale and as they did not know of these proceedings, defendants 5 and 6 and the other defendants who had purchased their interest were not made parties by the plaintiff company to the suit on the mortgage. The present suit has been brought by the plaintiff company for recovery of possession of the property in question subject to the right of redemption of the parties who had not been joined in the suit on the mortgage.

(3.) Defendants 1 to 4 as stated above, Are the purchasers of the nimhowla from defendants 5 and 6 in the benami of one Purna Chandra Sen and the main point taken in the written statement on their behalf was that the suit was barred by limitation. The trial Court decreed the suit. There was an appeal to the lower appellate Court but the appeal was dismissed subject to certain modifications regarding the amount of redemption. Thereafter defendants 1 to 3 have preferred the present appeal.