SRINATH DAS Vs. KHETTERMOHUN SINGH

JUDGEMENT

(1.) THE Appellant, who was the Plaintiff below, is the transferee of a mortgage effected by the first Defendant, Hurrinarain Dey, in favour of Shamasoondari Debi. The mortgage bears date the 17th of November, 1865. It is in the English form, providing for the payment of the debt on the 17th of February, 1866, and giving to the mortgagor the right of possession until default in payment, and to the mortgagee the right of entry after default. The property mortgaged is in the district of the 24-Pergunnahs.

(2.) ON the 15th of February, 1872, Shamasoondari applied to the District Judge of the 24-Pergunnahs to issue as usual a notice, of foreclosure to the opposite party under Regulation 17 of 1806. The opposite party was Hurrinarain. The notice was served on him; and on the 31st of March, 1873, a year having elapsed from the date of the service, the case was struck off the file. It is clear, therefore, that Hurrinarain's right to redeem was foreclosed, and that as against him Shamasoondari became absolute owner on or shortly before the 31st of March, 1873.

(3.) HURRINURAIN has not made any defence at any stage of the suit. Of the other Defendants, some either did not appear or did not put in any statement; one pleaded a mistake of personal identity; and eighteen, besides other pleas, contended that the suit was barred by time. Seventeen of them stated that they held plots purchased of Hurrinamin at various dates, ranging from November, 1865, to August, 1866. Some of them stated, as to their own plots, that Shamasoondari was privy to the purchases, and that the price was paid to her agent in reduction of the mortgage debt. But as the latest of these alleged transactions was in August, 1866, the difference between the cases of these Defendants need not be considered. One Defendant, No. 29, stated that he had purchased two plots of Hurrinarain's land, one in February, 1873, at a revenue sale, the other in December, 1876, at an execution sale. This Defendant stands in a different position from the others as regards both time and the effect of the foreclosure proceedings. But if his title is impeachable at all, which their Lordships are far from suggesting, it must be in a suit properly framed and conducted for that purpose.