C.C. Ghose, J.
1. The facts giving rise to the present application on behalf of the lessors of premises Nos. 123, 124, 125, 125 and 126/1, Canning Street, and 4, and 5, Jackson Lane in the town of Calcutta under an indenture of lease dated the February 16th, 1920, for an order that the Official Receiver of this Court, who is the receiver in this suit, of the said leasehold properties, should make over possession to the said lessors, are as follows:
It appears that by the indenture of lease dated the 16th February, 1920, one Sumermull Parruck was granted a lease of the said premises for a period of 41 years from the 1st January, 1918, and that one of the conditions in the said indenture was that if the said lessee or any of his heirs, executors, administrators or assigns becomes insolvent or bankrupt, it should be lawful for the lessors to re-enter the demised premises at any time thereafter and to re-possess and enjoy the same. By an indenture of mortgage dated the 3rd October, 1921, the lessee mortgaged the leasehold interest in the said properties to the plaintiffs Hazarimull Hiralal. The plaintiffs thereupon brought a suit on the 23rd June, 1922, to enforce their mortgage. The preliminary decree in the mortgage suit was made on the 16th August, 1922, and the Official Receiver was appointed receiver of the mortgaged premises on the same date.
2. The lessee Sumermull Parruck died intestate on or about the 27th November, 1922, leaving the present defendants his sole legal heirs and representatives and leaving, among others, a business carried on under the name and style of Sumermull Parruck and Panna Lal Parruck, and the said leasehold premises as his properties. The final decree for sale in the mortgage suit was made on the 5th May, 1924, and the properties comprised in the said mortgage were subsequently purchased by the mortgagees namely, the plaintiffs. On the 24th February, 1925, the firm of Sumermull Parruck and Panna Lal Parruck were adjudicated as insolvents.
3. It is contended now on behalf of the lessors that the effect of the adjudication order was to vest in the Official Assignee the properties of the said Sumermull Parruck and that owing to such insolvency there has been a forfeiture of the lease, in which the said Sumarmull Parruck and after his death the defendants as heirs of the said Sumermull Parruck were interested. The lessors now want an order that the Official Receiver who is in possession of the premises should make over possession thereof to them. The application is urged because it is said that the lessors have a paramount title and that therefore they can come into this suit and ask for art order pro interesse suo see in this connexion my judgment in Sreedhar Chaudhury v. Nilmoni Chaudhury : AIR1925Cal681 .
4. The application is opposed by the plaintiff and on their behalf Sir Benod Mitter in the course of a vigorous address has contended in the first place, that all the interest that the lessee had in the said premises had passed to the plaintiff by virtue of the mortgage hereinbefore referred to and that inasmuch as there has been no insolvency of the mortgagees, who were the assignees of the original lessee, the clause in the indenture of lease which it is suggested, ought to be brought into play on this summons, can have no application at all and, in the second place, that having regard to the fact that the certificate of sale in favour of the plaintiffs in execution of the said mortgage decree had been filed so far back as the 14th February, 1925, the certificate itself being dated the 6th February, 1925, the report of the Registrar must be taken to have stood confirmed by effluxion of time, and, in the third place, that the insolvency of the firm hereinbefore referred to can give no rise to any cause of action for an order such as is claimed in the present summons and lastly, that a declaration such as is now prayed for on behalf of the present applicants cannot be made and is never made on summons in chambers.
5. My attention has been drawn to the terms of the indenture of lease dated the 16th February, 1920, and I find that among the lessee's covenants there is nothing to prevent him from mortgaging the leasehold premises by way of sub-demise without obtaining the permission of the lessors. The mortgage, therefore, was valid as between the lessors and the mortgagees i.e., it could not be questioned by the lessors. The mortgagees, therefore, succeeded to the rights of the lessee, but having regard to the events which have happened the lessee's right to redeem is gone and the mortgagees have definitely and finally stepped into the shoes of the lessee, free from all trammels and restrictions except those contained in the indenture of lease. Therefore it follows that there has been no insolvency of the person who is the lessee now and is possessed of the leasehold term. In this view of the matter I do not think that the present applicants can invoke the clause, letting in the right to a forfeiture and on this ground alone this application must fail.
6. In the second place, I do not think that a declaration such as is now sought for can really be made in a summary manner on summons in chambers. It is not the practice of this Court to make declarations in matters like this on summons in chambers and, therefore, on this second ground the application fails. It is unnecessary for me to deal with the remaining two grounds upon which Sir Benod Hitter based his opposition. The two grounds upon which I have proceeded are fatal to the present application and it will suffice for the day to dismiss the present application on those two grounds. The application fails and must be dismissed with costs.