Bimal Chandra Basak, J.
1. This appeal is directed against a judgmentand order of Ghose, J. passed on the 26th July, 1971 in respect of a suit instituted by the respondent No. 1 herein the Bank of Tokyo Ltd. (hereinafter referred to as the Bank). On or about 13th March, 1971 the Bank filed this suit for leave under Clause 12 of the Letters Patent; Leave under Order 2. Rule 2 of the Code of Civil Procedure, 1908; Decree for Rs. 38,78.552.58 P.; Declaration that the stocks and shares mentioned in Annexure 'D' to the, plaint stand charged and pledged for repayment of the sum of Ra 38,78,552.58 P.; with costs and interest; Decree in a form similar to Form 5 or 5A of Appendix D to the Code of Civil Procedure 1908 in respect of the stocks, shares mentioned in Annexure 'D' with modifications. Sale of the stocks and shares mentioned in Annexurs 'D' and payment of the sale proceeds thereof to the plaintiff with liberty to appropriate the same in pro tanto satisfaction of its dues; Decree for enforcement of the aforesaid Charge or pledge and realisation of the dues of the plaintiff in such form as this Hon'ble Court thinks fit and proper; Interest; Costs; Receivers; Injunction; further and other reliefs.
2. The claim of the Bank arises out of transactions on an overdraft account opened in the Bank in the name of the defendant No. 1, a partnership concern. In this suit an application was made under Section 68(2) of the Transfer of Property Act (hereinafter referred to as the said Act) by the appellant herein, who was the defendant No. 1 in the suit, praying for an order that the suit and all proceedings therein be stayed until the plaintiff has exhausted all its available remedies against the mortgaged property or what remains of it and alternatively for a direction to the plaintiff to surrender and/or release and/or abandon its security and, if necessary, to retransfer the mortgaged property. This application was heard by Ghose, J. and by his judgment and order his Lordship dismissed the application. This appeal has been preferred against the same.
3. Mr. Deb, learned counsel appearing for the appellant, has raised two points. Firstly, he has submitted that this is a suit for mortgage money within the meaning of Section 68(1)(a) of the said Act and that the finding of the learned Judge to the contrary was erroneous. With regard to the decision in the case of Nitya-nanda Ghosh v. Rajpur Chhaya Bani Cinema Ltd. reported in : AIR1953Cal208 relied upon by the learned trial Judge,Mr. Deb relied on a decision of the Division Bench of this Court in the case of Sukhada Kanta v. Joginee Kanta reported in AIR 1934 Cal 73. He has further submitted that in the case of Nityananda Ghosh v. Rajpur Chhaya Bani Cinema Ltd. (supra) it was a suit on the promissory note which, according to him is not the same in the present case. He has further submitted that Section 68(1)(a) of the Act does not refer to cause of action. He has submitted that in the case of a suit for mortgage money there is no question of any other independent cause of action because all these so-called causes of action merge in the mortgage. It was also contended by him that in any event the lower security merges in the higher security viz., the mortgage of immovable property in this case.
4. The second submission of Mr. Deb is that having regard to the fact that this is a suit for mortgage money within the meaning of Section 68(1)(a) of the said Act, this is an appropriate case where the learned Judge should have exercised his discretion under Sub-section (2) of Section 68 of the said Act in favour of his client and should have stayed the suit and all proceedings therein. He has submitted that the reliance placed by the learned Judge on the case of Nityananda Ghosh v. Raj-pur Chhaya Bani Cinema Ltd. : AIR1953Cal208 (supra) in this context was not appropriate because that case proceeded on the basis that it was not a suit for mortgage money within the meaning of Section 68(1)(a) of the Act and accordingly, the discretion of the learned Judge was exercised on that basis. He has further submitted that the learned trial Judge in this case went wrong in observing that Nityananda Ghosh's case applies on all fours to the facts and circumstances of the instant case. It was contended by Mr. Deb that Nityananda Ghosh's case proceeded on the basis that a party cannot blow hot and cold at the same time. In that case the defendant who had made the application under Section 68(2) had himself raised the question of validity of the mortgage. Mr. Deb contended that the appellant-petitioner Soorajmull Nagar-mull had never raised the question of the validity of such mortgage.
5. On behalf of the Bank of Tokyo, Mr. T. K. Basu has supported the findings of the learned trial Judge. He has submitted that this suit was not a suit for mortgage money within the meaning of Section 68(1)(a) of the Act and for this pur-pose he has placed before us the plaint in the suit, particularly paragraphs 32 and 33 thereof, wherein the plaintiff has referred to the security furnished by way of deposit of title deeds and whereby the plaintiff has reserved its rights to pursue its remedy in respect of such security in some other action. He has also drawn our attention to the prayer regarding Order 2, Rule 2 of the Code of Civil Procedure. In respect of the exercise of the discretion by the learned trial Judge, it was submitted that the discretion was properly exercised.
6. On behalf of respondent No. 3 Mr. P. K. Das appeared but he did not make any submission. He, however, made it clear that he was not supporting this appeal and his client was denying and disputing the validity of the mortgage. It may be pointed out that the respondent No. 3 is Mohanlal Jalan who was admittedly one of the partners of Soorajmull Nagarmull, Mr. Majumdar, appearing for the respondent No. 4, pointed out that there was a suit for dissolution of the appellant firm,
7. In view of our findings in respect of second contention of Mr. Deb, we do not think it necessary to go into the merits of the first submission of Mr. Deb. Proceeding on the basis that this is a suit for mortgage money within the meaning of Section 68(1)(a) of the said Act, the question is whether we should interfere with the exercise of discretion by the learned trial Judge. It is well settled that the Court of Appeal should not ordinarily interfere with the discretion exercised by the learned trial Judge and substitute its own exercise of discretion. Had the matter been before the Appeal Court at the first instance, it might or might not have held the same view or might or might not have exercised its discretion in the same manner as the learned trial Judge had done; but that by itself is not sufficient to enable the Appeal Court to interfere with the exercise of discretion by the learned trial Judge. It must be shown that in exercising its discretion the trial Judge has acted unreasonably or capriciously or has ignored relevant facts and has adopted an unjudicial approach. In this particular case we are not satisfied that any case has been made out to compel us to interfere with tha discretion exercised by the learned trial Judge. The learned trial Judge has referred to the fact that one of the partners, Mohanlal Jalan, has in his affidavit deni-ed the factum as well as the validity of the said mortgage stated to have been created by the deposit of title deeds as referred to in the plaint. The learned Judge has also pointed out that Deoki-nandan Jalan, another partner, has also in his affidavit denied the factum as well as the validity not only of the mortgage but also of the validity of the loans so far as the firm is concerned. The power and authority of Kishorilal Jalan to file or maintain the instant application on behalf of the defendant No. 1, Sooraj-mull Nagarmull, which was a partnership concern has also been challenged. In these circumstances we are of the opinion that it cannot be said that the exercise of discretion by the learned trial Judge was improper. On the other hand, we are of the opinion that the learned trial Judge correctly exercised his dis-cretion in refusing to stay the suit in terms of Sub-section (2) of Section 68 of the said Act. The fact remains that Soorajmull Nagarmull is a .partnership firm. Two of its partners have raised the question of validity of this mortgage. It has also to be pointed out that there are certain suits instituted in this Court for dissolution of this firm which, inter alia, include suit for declaration that the said firm stood dissolved on and from a particular date. According to Deokinandan the appellant firm stands dissolved. The admitted position further is that meanwhile the hearing of this suit has started and one of the witnesses had been examined de-benne-esse. The authority of any person to make any application on behalf of Soorajmull Nagarmull at the relevant time is also disputed. In that view of the matter, we are of the opinion that no case has been made out to enable us to interfere with the exercise of discretion by the learned trial Judge.
8. Accordingly, we dismiss this appeal with costs.
A.N. Sen, J.
9. I agree.