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Sripoti Churn Dey Vs. Mohip NaraIn Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal643
AppellantSripoti Churn Dey
RespondentMohip NaraIn Singh
Cases ReferredLalla Doorga Pershad v. Lalla Luchmun Sahoy
Excerpt:
mortgage - right to redeem--mokuraridar--regulation xvii of 1806, section 8--notice of foreclosure. - .....xvii of 1806, and notice was served upon the mortgagors, but not upon the defendant, and the plaintiff subsequently obtained a decree for possession against the mortgagors. he now sues to set aside the defendant's patta.2. the subordinate judge, reversing the decision of the munsif, has held that the plaintiff's case fails on the ground that the defendant was entitled to redeem the plaintiff's mortgage and therefore ought to have been served with notice of foreclosure under section 8 of the regulation.3. we do not agree in this view. it was held by a division bench of this court, consisting of macpherson and glover, jj. in lalla doorga pershad v. lalla luchmun sahoy 17 w.r. 272 that a person in the defendant's position is not entitled to redeem, and we think we ought to follow that.....
Judgment:

Prinsep, J.

1.The facts of this case are as follows: In Assin and Pous 1276 Ikram Rusul and others executed in favour of the plaintiff a mortgage by way of conditional sale of certain lands. They subsequently granted a mourasi mokurari patta of the same land to the defendant. The plaintiff took foreclosure proceedings under Regulation XVII of 1806, and notice was served upon the mortgagors, but not upon the defendant, and the plaintiff subsequently obtained a decree for possession against the mortgagors. He now sues to set aside the defendant's patta.

2. The Subordinate Judge, reversing the decision of the Munsif, has held that the plaintiff's case fails on the ground that the defendant was entitled to redeem the plaintiff's mortgage and therefore ought to have been served with notice of foreclosure under Section 8 of the Regulation.

3. We do not agree in this view. It was held by a Division Bench of this Court, consisting of MacPherson and Glover, JJ. in Lalla Doorga Pershad v. Lalla Luchmun Sahoy 17 W.R. 272 that a person in the defendant's position is not entitled to redeem, and we think we ought to follow that ruling. And that being so he cannot, we think, be called a representative within the meaning of the section in question.

4. The decree of the lower appellate Court will be reversed and that of the Munsif affirmed with costs in all Courts.


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