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Bibhuti Bhusan Chakravarty and ors. Vs. Umesh Chandra Mukherjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in48Ind.Cas.614
AppellantBibhuti Bhusan Chakravarty and ors.
RespondentUmesh Chandra Mukherjee
Excerpt:
civil procedure code (act v of 1908), section 115 - revision--question of law--high court, power of interference of. - .....mortgage securing the payment of paddy--and apparently there were endorsements on the deed. the learned judge held that the opposite party had an interest.' it is quite true that the learned judge departed from the duties of a judge when he stated that the mortgagors were morally bound to pay off the debt. but notwithstanding that, he in his capacity as a judge adjudicated on the rights of the parties and held that the opposite party had a subsisting interest on the- terms of the mortgage. that is a pure question of law. whether or not the opposite party has under the terms of the mortgage an interest' in the property is a matter on which, as far as i can see, the judges of this court are not all agreed as to what is the nature of the mortgage and what is the article of the indian.....
Judgment:

Fletcher, J.

1. This is an application made by the decree-holders who purchased certain property in execution, asking the Court to an order made by the District Judge affirming the decision of the Munsif. The District Judge has found that the applicants obtained by fraudulent Suppression of sale-notices a property of considerable value for an inadequate price of Rs. 49 only. The decree-holders, being aggrieved by the. judgment of the District Judge, have applied to this Court to have the order set aside. The first question that arises is this: Had the opposite party an interest entitling him to come to Court under the provisions of Order XXI, Rule 90, Code of Civil Procedure. The opposite party had a mortgage--a mortgage securing the payment of paddy--and apparently there were endorsements on the deed. The learned Judge held that the opposite party had an interest.' It is quite true that the learned Judge departed from the duties of a Judge when he stated that the mortgagors were morally bound to pay off the debt. But notwithstanding that, he in his capacity as a Judge adjudicated on the rights of the parties and held that the opposite party had a subsisting interest on the- terms of the mortgage. That is a pure question of law. Whether or not the opposite party has under the terms of the mortgage an interest' in the property is a matter on which, as far as I can see, the Judges of this Court are not all agreed as to what is the nature of the mortgage and what is the article of the Indian Limitation Act that applies to the' case. But this is a question of law and it is quite clear that the Court will not and cannot interfere under the terms of Section 115, Code of Civil Procedure, at the instance of the persons who complain of the learned Judge's decision on a point of law.

2. The next point that has been seriously pressed by Mr. Palit on behalf of the petitioners is as regards the finding of the learned Judge with' reference to the applications to set aside the sale, having regard to the facts of the case, being within the ' time allowed to make such an application. It is quite true that if one takes that as the first part of the judgment and alone, the finding is not sufficient. Of course, it would have been much better if the finding had been, given in clear and conclusive terms in an earlier part of the judgment. But what the learned Judge meant to say is quite clear. If one reads the next part of his judgment which is not dealing with the question of limitation, and takes the findings made therein coupled with the earlier portion of the judgment, it is quite clear that the learned Judge meant to find facts on which he could come to the conclusion that the application to set aside the sale was within time. I think in this case no ground has been shown to us to interfere with the decision of the learned District Judge. The present Rule, therefore, fails and is discharged with costs, one gold mohur.

Walmsley, J.

3. I agree.


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