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Jonmenjoy Mullick Vs. Dassmoney Dassee and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal700
AppellantJonmenjoy Mullick
RespondentDassmoney Dassee and anr.
Cases Referred and Madhab Chunder Ghose v. Radhika Chowdhrain
Excerpt:
review of judgment - subsequent full bench decision--ground for review--suit by mortgagee to declare lien--subsequent suit for possession. - .....c.j.1. we thought it right in this case to grant a review of judgment in consequence of the full bench decision in another suit between the same parties and upon the same subject-matter. the full bench case is reported in i.l.r., 7 cal., 714, and the circumstances under which this suit was brought will be found stated at length in the report of the former judgment in i.l.r., 3 cal., 363; s. c., 1 c.l.r., 446.2. on the 26th august 1868, the ancestor of the defendant no. 2 borrowed money from the husband of defendant no. 1, upon a simple money-bond. on the 10th january 1869, the same person borrowed money from the plaintiff upon a specially registered mortgage-bond, which hypothecated two estates for payment of the loan. on the 22nd february 1871, the plaintiff obtained a money decree.....
Judgment:

Richard Garth, C.J.

1. We thought it right in this case to grant a review of judgment in consequence of the Full Bench decision in another suit between the same parties and upon the same subject-matter. The Full Bench case is reported in I.L.R., 7 Cal., 714, and the circumstances under which this suit was brought will be found stated at length in the report of the former judgment in I.L.R., 3 Cal., 363; s. c., 1 C.L.R., 446.

2. On the 26th August 1868, the ancestor of the defendant No. 2 borrowed money from the husband of defendant No. 1, upon a simple money-bond. On the 10th January 1869, the same person borrowed money from the plaintiff upon a specially registered mortgage-bond, which hypothecated two estates for payment of the loan. On the 22nd February 1871, the plaintiff obtained a money decree only on this mortgage-bond. On the 25th February 1871, the husband of defendant No. 1, in execution of a decree which had been previously obtained by him for his debt, bought at auction the right, title, and interest of his debtor in one of the properties mortgaged to the plaintiff. The plaintiff then took out execution of his money-decree, and on the 13th of June 1871 his debtor's right, title, and interest in the same property was again put up to sale and bought in by the plaintiff himself. The plaintiff then brought this suit to have it declared, that defendant No. 1 held the property subject to his mortgage.

3. Under these circumstances the plaintiff's suit, after having been decreed by the Subordinate Judge, was dismissed in the High Court, upon the ground that the plaintiff, by suing for his money-decree only, had deprived himself of the benefit of his lien as against the defendant No. 1.

4. The plaintiff then brought another suit to recover possession of the mortgaged-property from the defendant No. 1. That case came up on appeal to the High Court, and the learned Judges of the Division Bench, having grave doubts as to the correctness of the former judgment in this suit, referred certain questions to the Full Bench, the first of which was as follows: Can the purchaser, under the decree obtained under the specially registered bond, sue the first purchaser for restoration of the mortgaged property

5. The Judgment of the Full Bench upon that first point being decisive of the rights of the parties, it was not considered necessary to answer the other questions referred. The Full Bench say--'The plaintiff has clearly no right to sue for the restoration of the mortgaged-property; his proper course was that which he adopted in the first instance, namely, to sue to have his lien upon the property declared. The High Court's Judgment in Dassmoney Dossee v. Jonmenjoy Mullick I.L.R. 3 Cal. 363; 1 C.L.R. 446 appears to us to be erroneous.'

6. The Full Bench further intimated that in that suit they were of course unable to give the plaintiff any relief, but that it was quite open to him to make an application to a Division Bench for a re-hearing or a review of the judgment in the former suit, as he might be advised.

7. In consequence of this intimation, an application was made to us by the plaintiff to review the former judgment of this Court; and as both the Judges who took part in that judgment had left the Court, and we considered there was sufficient ground for a review, we granted the application.

8. The case has now been re-heard before us on review; and the only point which has been seriously argued by the defendants is, that the decision of the Full Bench, however clearly it may have declared the right of the plaintiff in the present suit, is no ground for a review.

9. It is said, and said truly, that if any change in the law, which may be occasioned by a decision of the Privy Council or by a Full Bench of a High Court, were to have the effect of reversing all former decisions in suits which had been decided on a different view of the law, litigation would never be at an end, and the rights of parties would never be secure. And in aid of that argument several authorities were cited by the learned Counsel for the defendant, of which the case of Dwarka Nath Doss Biswas v. Manick Chunder Doss 9 W.R. 102; Shama Churn Chuckerbutty v. Bindabun Chunder Roy B.L.R. Sup. Vol. 892; 9 W.R. 181 and Madhab Chunder Ghose v. Radhika Chowdhrain 7 W.R. 405 form illustrations.

10. In this general rule we entirely agree; but we think that the present case stands upon a different footing.

11. The plaintiff in this suit, having been successful before the Subordinate Judge, had his case dismissed in the High Court. In consequence of this he made an alternative claim in a second suit, and upon the question in suit being referred to a Full Bench, the learned Judges unanimously decided, that the course which the plaintiff had taken in the second suit was wrong, and that the course which he had taken in the first suit was right.

12. Upon this decision of the Full Bench, we think that we are justified in reversing the former judgment on review and carrying into effect the decision of the Full Bench. This appears to us to be a very different thing from interfering with previous decisions of the Court in other cases between other parties.

13. It is obvious that the justice of the case is entirely in the plaintiff's favour; and we are not aware of any rule or authority which prevents us from giving him his rights.

14. The former decision of this Court will, therefore, be reversed, and the decree of the District Judge restored; and the defendants will pay the plaintiff the costs of this last hearing, but not of the former one.


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