KEDAR NATH BOTHRA Vs. BAIJNATH BOTHRA

JUDGEMENT

(1.) This is an application by Kedarnath Bothra, an infant, represented by his mother, Mt. Tiju, calling upon Mt. Kesar Bai to appear and answer as to why the Sheriff of Calcutta should not give possession of a portion of No. 48, Nolini Sett Road in terms of the order to that effect dated 19 November 1938. In May 1925 the present applicant brought a suit for partition of the joint properties of his father, Hiralal, and his uncle, Johurmull. The lady who is now resisting possession, which the Sheriff seeks to take, is the widow of Johurmull who died on 16 June 1935. In 1927 there was a partition decree by consent in which it was declared that Hiralal and Johurmull each had a half share, and an order made in May 1931 directed a sale of the premises among the parties. At that sale Johurmull bought No. 48, Nolini Sett Eoad subject to the condition that he would execute a mortgage in respect of the entirety of the property sold to secure the purchase money and he covenanted that he would pay the amount of the mortgage within three years from date. He failed however to execute the mortgage and after an order directing him to execute it within a fortnight the mortgage was executed by the Registrar on his behalf on 11 August 1933. The mortgage money was Rs. 51,975 which was admittedly the value of the half share of the premises.

(2.) Johurmull died on 16 June 1935 leaving two sons, Baijnath and Srinath. On 4th September 1935 the present suit was instituted by the petitioner to enforce the mortgage. The defendants to that mortgage suit, Johurmull's sons, Baijnath and Srinath, on 18 June 1936 filed a suit for cancellation of the mortgage on the ground! that it was not binding upon them. On 26 June 1936 there was a consent decree in the present suit, but without prejudice to the contentions raised by the defendants in their suit and there was a stay of execution of the sale until the disposal of that suit to set aside the mortgage. On 6 August 1936, the petitioner obtained an order for the appointment of a receiver of the premises No. 48, Nolini Sett Road but the defendants were allowed to reside there on payment of rent to the receiver. That application was opposed by Baijnath and Srinath and they then raised again the contentions which they had been putting forward in their own interests with regard to the validity of the mortgage and with, regard to the validity of the title of Hiralal. When the receiver was appointed they appealed from the order of payment and that appeal was dismissed with costs on 15 March 1937. Baijnath and Srinath however still refused to pay any rent and on 3 August there was an order by this Court directing them to vacate the premises within one week and to pay rent to the receiver in respect of a portion of the premises at the rate of Rs. 35 per month, dating back from 6 August 1936.

(3.) The defendants again appealed from that order and applied for stay of execution. The Court of Appeal ordered the defendant to pay the rent as directed. It further directed that there should be a stay of the order of ejectment until the final disposal of the appeal. On 22nd December 1937 the appeal was dismissed with costs. On 28 January 1938 the petitioner applied for execution of the decree which had been made on 3 August 1937 and the Sheriff was directed to deliver possession to the receiver of that portion of the premises which was in the occupation of the defendant. On 10 February 1938, the Sheriff's officer went to carry out the order and to obtain possession but he was obstructed by Mt. Kesar Bai, the mother of the defendants Baijnath and Srinath. There were various proceedings thereafter, to which it is not necessary now to refer, but again on 19 November 1938 the petitioner applied for an order directing the Sheriff to exe. cute the order of 3 August 1937 and to give delivery of the premises to the receiver. The Sheriff went on 17 January 1939 to execute the order and was again obstructed by Mt. Keaar Bai, whereupon the present application was made by the petitioner and a summons has been issued to Kesar Bai to show cause why she should not give possession. She has now filed an affidavit in opposition and has been represented by counsel on this application.