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Shoda Nunda Surma and anr. Vs. Gonesh Chandra Pal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal138
AppellantShoda Nunda Surma and anr.
RespondentGonesh Chandra Pal
Cases ReferredBehari Lall v. Beni Lall I.L.R.
Excerpt:
regulation xvii of 1806, section 8 - foreclosure, right of--demand from mortgagor. - .....before the court, through which the foreclosure notice was served, as to the sufficiency of the service of notice, and some record of its finding: whereas no evidence of the 'service of notice was tendered before that court, and the case was 'struck off,' as it is described. we think that the lower appellate court was right in the view taken by it.3. but another point was raised, und that is this, that under the regulation it is necessary, in order to lay a foundation for the foreclosure proceedings, that demand shall have been made from the mortgagor or his representative. the words of the regulation are, 'he shall (after demanding payment from the borrower or his representative) apply for that purpose.'4. it has been held by the allahabad high court--and we think correctly--in the.....
Judgment:

Wilson and Beverley, JJ.

1. Two points have been argued before us: first, it was contended that the Subordinate Judge was wrong in holding that the conditions of the law as to foreclosure had been sufficiently complied with so far as notice was concerned.

2. It has been found by both Courts that notice was issued and duly served. But it is said that that is not enough; that there ought to have been some inquiry before the Court, through which the foreclosure notice was served, as to the sufficiency of the service of notice, and some record of its finding: whereas no evidence of the 'service of notice was tendered before that Court, and the case was 'struck off,' as it is described. We think that the lower Appellate Court was right in the view taken by it.

3. But another point was raised, und that is this, that under the regulation it is necessary, in order to lay a foundation for the foreclosure proceedings, that demand shall have been made from the mortgagor or his representative. The words of the regulation are, 'he shall (after demanding payment from the borrower or his representative) apply for that purpose.'

4. It has been held by the Allahabad High Court--and we think correctly--in the case of Behari Lall v. Beni Lall I.L.R. 3 All. 408 that demand is a condition precedant to the right to take foreclosure proceedings.

5. In the present case the Munsiff found that there was no demand. The lower Appellate Court does not dissent from that finding and does not notice the point. But it is clear that no demand was alleged, nor was any issue raised about it. It is admitted that there is no evidence of any demand, and as pointed out by the Munsiff, it is practically impossible, having regard to the peculiar circumstances of the case, that there could have been any demand. And in the grounds of appeal to the lower Appellate Court not a trace of it is shown. We think it unnecessary, therefore, to send the matter back to the lower Appellate Court to determine whether there was a demand. It is clear that no demand was made. On this ground, therefore, the decree of the. lower Appellate Court will be reversed and the plaintiffs' suit dismissed with costs in all the Courts.


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