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Raj Chunder Dass Vs. Jharoo and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal299
AppellantRaj Chunder Dass
RespondentJharoo and ors.
Cases ReferredRaj Kissen Mookerjee v. Radha Madhab Haldar
Excerpt:
lis pendens - purchase of property in which there is a decree in suit on a mortgage bond--suit for possession against purchaser from mortgagor. - .....of that decree, he purchased the mortgaged property on the 5th may 1878. the defendant, at a sale held in execution of a money decree against the same debtor, purchased this property on the 1st april 1878, that is to say, before the purchase of the plaintiff. the plaintiff now sues to recover possession from the defendant, and he has obtained a decree from the lower appellate court. it is contended in appeal that the plaintiff's suit for possession should be dismissed, and that he should be left to bring a suit for possession on the strength of his mortgage against the defendant, so that the defendant might have an opportunity to redeem. the learned pleader for the defendant-appellant relies on the cases of nanack chand v. teluckdye koer i.l.r. 5 cal. 265; gopal lall v. bolakee i.l.r. 5.....
Judgment:

Prinsep and Grant, JJ.

1. The plaintiff, in 1877, obtained a mortgage decree in respect of the property now in litigation against his debtor. In execution of that decree, he purchased the mortgaged property on the 5th May 1878. The defendant, at a sale held in execution of a money decree against the same debtor, purchased this property on the 1st April 1878, that is to say, before the purchase of the plaintiff. The plaintiff now sues to recover possession from the defendant, and he has obtained a decree from the lower Appellate Court. It is contended in appeal that the plaintiff's suit for possession should be dismissed, and that he should be left to bring a suit for possession on the strength of his mortgage against the defendant, so that the defendant might have an opportunity to redeem. The learned pleader for the defendant-appellant relies on the cases of Nanack Chand v. Teluckdye Koer I.L.R. 5 Cal. 265; Gopal Lall v. Bolakee I.L.R. 5 Cal. 269 and Bir Chandra Manikya v. Mahomed Afsaroodeen I.L.R. 10 Cal. 299. After having fully considered all those cases we think that none of them are in point. The contention in the first case was between two mortgagees, and the Court held that the puisne mortgagee could not, in a suit for possession, have an opportunity to redeem and it accordingly directed that possession should be retained by the party who had purchased the rights of the mortgagor leaving the first mortgagee to bring a suit against the second mortgagee. In the other two cases the title of the plaintiff depondod upon purchases under money decrees held by a mortgagee and it was held that such decrees would not confer the same rights as under a purchase in execution of a mortgage decree. The case before us is similar to that of Raj Kissen Mookerjee v. Radha Madhab Haldar 21 W.R. 349 and for the reasons stated in that judgment, we think that the plaintiff is entitled to a decree. The appeal is therefore dismissed with costs.


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