1. This is an appeal on behalf of defendant 3, and arises out of a suit which was commenced by the plaintiff to enforce two English mortgages which had been executed in his favour on 20th May and 29th September 1919. There were five defendants in the suit, and a preliminary decree for foreclosure was made against them all by the First Additional Subordinate Judge of 24-Parganas on 29th July 1935. The present appeal is directed against this decree. Since this appeal was presented, the final decree was passed on 23rd November 1938, whereby the defendants and all persons claiming through them were absolutely debarred of their right to redeem the mortgaged properties. No appeal has been preferred against this final decree, but a copy has been placed on the records of this appeal, and following the procedure Laid down by the Full Bench in Talebali v. Abdul Aziz : AIR1929Cal689 , it should be the duty of this Court in dealing with the present appeal to give necessary and consequential directions regarding the final decree.
2. The facts giving rise to this litigation are as follows : On 30th September 1906, one Mohendra Nath Das, a wealthy Hindu governed by the Dayabhaga school, died leaving a will, executed a few years before his death, whereby he had endowed all his properties, moveable and immovable, for the worship of a family deity called Sri Sri Iswar Mahadeb or Shib Thakur. The will was in due course admitted to probate by the executors. Shortly thereafter, on 27th March 1909, a nephew (brother's son) of the testator, named Charu Chandra Das, commenced a suit (suit No. 313 of 1909) against the executors on the original side of this Court, in which he claimed that the properties left by Mohendra were joint properties and that he had inherited an eight anna share in the same. He accordingly asked for a declaration of his title and for partition. On 12th June 1912, a preliminary decree was passed in the suit, declaring Charu's title to a half share as claimed, and directing a partition by metes and bounds. No steps, however, were taken by Charu to enforce a partition under the decree. It was while the properties still remained joint that the executors of Mohendra's estate effected the present mortgages in favour of the plaintiff, the first on 20th May 1919 and the second, a deed of further charge, on 29th September following. The security offered was the testator's declared undivided share in the properties left by him, which comprised some lands at Belur and Ultadinghi and two brick-built houses in Calcutta, namely 5, Padma Nath Lane and 88, Beadon Street. The principal amounts secured by the two mortgages were Rs. 3500 and Rs. 2500 respectively, carrying interest at the rate of 12 per cent. per annum compound with quarterly rests, and the due date fixed for the repayment of the loans was 20th May 1920. Meanwhile, Charu had got heavily involved in debts, both secured and unsecured and on 1st September 1919, on the petition of a creditor, he was adjudicated an insolvent by an order of this Court in its insolvency jurisdiction. The result was that his properties, being the undivided eight anna share decreed to him in the partition suit, vested in the Official Assignee. The Official Assignee in due course advertised the said share for sale for payment of the insolvent's debts, and this attracted defendant 3, Saradindu Mookerjee, as an intending purchaser.
3. It is stated on behalf of Saradindu that he had dealings from before with Charu as well as with the executors of Mohendra's estate, but whether that is a fact or not, it appears that on 4th August 1920, he did enter into an agreement with the Official Assignee, to which both Charu and the executors were made partiRs. The terms of this agreement, which really constitutes the foundation of Saradindu's claim in this suit, will have to be examined later, but it 'will be sufficient to state at this stage that Saradindu thereby agreed to purchase Charu's undivided interest in the properties which the Official Assignee had offered for sale, subject to payment of all his debts which had been secured thereon, and Saradindu also undertook to pay off all the secured debts of Mohendra's estate, on condition that Charu and the executors of Mohendra should 'carry out' the decree for partition, and upon such partition, allot to Saradindu 'sufficient properties' out of the joint estate which would enable him by sale thereof to discharge all the secured liabilities in both shares.
4. Whether by such allotment Saradindu was to acquire any interest in any properties out of Mohendra's share is by no means clear, for the agreement expressly provided that the allotment was to be made to him as assignee of Charu's interest and in lieu thereof : it further provided that out of the properties to be so allotted, if any were not required to be sold, Saradindu was to make over the same, together with any balance of the sale proceeds that might be left in his hands, to Charu and the executors to be held by them in certain shares. This might be supposed to imply that in respect of the properties which were to be allotted to Saradindu on 'carrying out' the partition, he was merely to be the agent of the parties for selling the same, and not to acquire any beneficial interest therein for himself. Such a view would no doubt be difficult to reconcile, so far at any rate as Charu's share was concerned, with the clear provision in the agreement for an out and out assignment of the said share to Saradindu. At the same time, it is not easy to see how under cover of an assignment, and in lieu, merely of Charu's interest, Saradindu could claim to be entitled on partition to any properties in excess of Charu's legitimate share. And yet this must doubtless have been the intention of the provision regarding the allotment of 'sufficient properties' to Saradindu out of the joint estate. The 'sufficient properties' could only come out of the moiety properly assignable to Mohendra's share.
5. Be that as it may, the fact remains that an indenture of agreement was executed in these terms on 4th August 1920, and the parties to the transaction as stated were (1) the Official Assignee, first party, (2) the executors of Mohendra's estate, second party, (3) the insolvent Charu, third party, and (4) Saradindu Mookerjee, fourth party. On 31st August following there was a conveyance (Ex. 3) executed by and between the same parties in terms of the agreement, which terms in fact were fully recited therein. As between the Official Assignee and Charu on the one hand and Saradindu on the other, it purported to be a conveyance to the latter of all the right, title and interest of Charu in the joint estate, while as between the executors, Charu and Saradindu, it merely contained reciprocal covenants by these parties for the performance of their respective parts of the agreement. The consideration for the conveyance was stated to be Rs. 29,000, which was the total amount of Charu's unsecured debts, and it was presumably the idea that the Official Assignee would pay off these debts with this sum.
6. It appears that on 5th October 1921, before any steps were taken to effect a separate allotment of the properties as contemplated by the agreement and the conveyance, Saradindu, Charu and the executors jointly executed a mortgage (EX. 1 (b)) in respect of the 16 annas share of these properties in favour of one Suresh Chandra Chowdhury for a sum of Rs. 2,10,000, Saradindu describing himself therein as purchaser of the equity of redemption of Charu from the Official Assignee. It was stated that the purpose of the loan was to clear off the encumbrances on the properties which were offered as security. It was not until 19th November 1925, that Saradindu applied in Charu's partition suit (Suit No. 313 of 1909) to be substituted in his place for the purpose of carrying out the decree passed in that suit, claiming to do so as purchaser of Charu's right, title and interest. In his application he recited the agreement of 4th August 1920, and the conveyance of 3lst August following, and also recited the preliminary decree for partition which had expressly directed a division of the properties into two equal parts or shares as between Charu and the executors of Mohendra's estate, and he specifically asked for the appointment of a commissioner for making a partition in terms of the said decree and allotting to him 'the share which was of the said Charu Chandra Das in the joint properties.' On 26th November 1925 an order for substitution was made and a writ of commission issued as asked for. The direction in the writ was for a division into two equal parts or shares, one to be allotted to Saradindu and the other to the executors.
7. From the report of the Commissioner which he submitted on 6th July 1928 it appears however that though he had caused the properties to be valued by a competent surveyor and valuer, and the valuations were accepted by the parties, he nevertheless made the division, not into two equal halves, but according to an agreement arrived at between the parties, admittedly an unequal division, the Commissioner himself stating that properties of greater value were being allotted to Saradindu. In fact, only one of the Calcutta properties namely 5 Padma Nath Lane, was assigned to Mohendra's estate, while all the remaining properties including the Belur and Ultadinghi lands and premises No. 88, Beadon Street were allotted to Saradindu. Suresh Chandra Chowdhury, the mortgagee of the joint properties, was not a party to the partition proceedings: all the same, the Commissioner directed in his report that the properties given to Saradindu would only remain charged with payment of the sum due to Suresh under the mortgage, which the Commissioner put down as Rs. 2,10,000. It was stated that this sum included debts which had been incurred by the executors of Mohendra's estate, amounting to Rs. 90,000 and the executors, apparently for this reason, were declared entitled to hold the properties allotted to them free from all incumbrances. On the application of Saradindu, the Commissioner's report was in due course confirmed by the High Court and the final decree for partition passed in terms thereof on 12th September 1928 (Ex. D). Saradindu thereafter assumed to hold the properties allotted to him in absolute right, subject of course to the mortgage in favour of Suresh Chandra Chowdhury. On 27th June 1930 he purported to sell some of the properties to the Ramkrishna Mission for a sum of rupees 40,000 having by an indenture of the same date (Ex. A) obtained from Suresh a release and re-conveyance of these properties on payment of Rs. 38,000 out of the sale proceeds in part satisfaction of the mortgage debt. A consent order was afterwards made on 19th December 1933, Ex. 8 (a) in Suresh's mortgage suit (Suit No. 588 of 1924), adjusting the decree passed in that suit between him and Saradindu, whereby the whole amount due was settled for the sum of Rs. 2,10,000 out of which Rs. 50,500 was made payable by Saradindu immediately, and the balance in certain instalments extending to 15th April 1941 and Suresh in return re-conveyed and re-transferred to Saradindu all the mortgaged properties which still remained unsold, Saradindu undertaking not to deal with or dispose of these properties before the mortgagee's claim under the settlement was fully satisfied.
8. In this state of things, on 17th July 1933 the present plaintiff, Jaharlal Agarwalla, commenced the suit out of which this appeal arises, to enforce the two mortgages which, as already stated, had been executed in his favour on 20th May and 29th September 1919 by the executors of Mohendra's estate. The original mortgagors were not parties to the suit, but, in their place, the plaintiff impleaded the idol, Sri Sri Shib Thakur, as the beneficiary under the testator's will, and Charu as shebait of the idol and also as Mohendra's sole surviving natural heir. They are defendants land 2 respectively, and it is not disputed that between them they fully represent the estate of Mohendra. Charu having died since the passing of the decree by the Court below, his heirs who are also the present shebaits have been duly brought on the records of this appeal as respondents. There were three other defendants in the suit, whom the plaintiff joined as parties as 'subsequent transferees,' namely, Saradindu Mookerjee (defendant 3), Suresh Chandra Chowdhury (defendant 4) and the Ramkrishna Mission (defendant 5), the last named defendant being a society registered under Act 21 of 1860. The mortgages in suit being English mortgages, the plaintiff asked for a decree for foreclosure, and in the alternative; for sale of the mortgaged properties. In his plaint he referred to the agreement of 4th August 1920 as well as to the conveyance of 3lst August of that year, but did not seek to enforce any liability against Saradindu on the basis thereof. On the other hand he claimed that notwithstanding the agreement, he was entitled to realise his security in terms of the mortgage deeds, and accordingly asked for a decree against the mortgagors' half share in each of the several items of properties comprised in the deeds. As regards the allotment made in favour of Saradindu in the partition suit, the plaintiff expressly challenged it as 'unfair,' 'inequitable' and 'collusive.'
9. The suit was not contested on behalf of the mortgagors, nor on behalf of Suresh Chandra Chowdhury though the latter had entered appearance. The Ramkrishna Mission resisted the claim as regards the properties which they had purchased from Saradindu. The main opposition, however, came from Saradindu, who raised inter alia the bar of limitation, and further pleaded that by virtue of the proceedings in the partition suit the plaintiff's mortgage lien could attach only to the properties which were allotted in severalty to the mortgagors as representing their undivided interest in the joint estate which they had mortgaged. He stoutly denied all liability in respect of any debts incurred by the executors of Mohendra's estate, and even pretended not to have any knowledge of the agreement of 4th August 1920, though he had to admit that the agreement was set out in the conveyance of 31st August 1920, on which he could not but rely in support of his title. By an additional written statement Saradindu sought to set up a claim of priority over the plaintiff by virtue of certain payments alleged to have teen made out of the consideration money for the mortgage in favour of Suresh Chandra Chowdhury, to satisfy four prior mortgages of the executors, three in favour of Saradindu himself for Rs. 3000, Rs. 2000 and Rs. 1000 respectively, and one in favour of Radha Nath Pal and Kanai Pal for Rs. 22,000. On the objection of the plaintiff, the Court below refused to admit the additional written statement. The Ramkrishna Mission generally supported Saradindu, and further raised the plea of being a bona fide purchaser for value without notice.
10. The learned additional Subordinate Judge of 24-Parganas who heard the suit overruled all the objections of the defendants, and passed a preliminary decree for foreclosure in the usual terms, but in view of what he considered to be 'inordinate delay' on the part of the plaintiff in the institution of the suit, he reduced the amount of interest, and in the result, made a decree for Rs. 15,000 only, including interest up to the date of the decree, and costs. The claim, it may be stated, had been Laid at Rs. 26,731-3-9. The Ramkrishna Mission have filed an independent appeal against this decree (F.A. 266 of 1935), which will be separately dealt with.
11. In support of the present appeal by Saradindu Mr. Atul Chandra Gupta urged four points before us on behalf of his client. The first was on the question of limitation, but it was not seriously pressed till the end. In the trial Court; it seems to have been assumed that the 12 years' rule of limitation applied (Art. 132 of Schedule I, Limitation Act). The suit was instituted on 17th July 1983, which was more than 12 years from the due date of payment under the two mortgages, namely, 20th May 1920, but limitation was sought to be saved by setting up payment of a sum of Rs. 500 as interest on each mortgage on 11th October 1921, which the Court below found in favour of the plaintiff. As to this, Mr. Gupta said that the appellant's answer was two-fold; first, that the alleged payment was not a fact, and secondly, that in any case it was not such a payment as would be sufficient in law to save limitation. Fairly and frankly, however, Mr. Gupta himself suggested that in view of the fact that the mortgages sued upon were English mortgages, the article to be considered was Article 147, which provides a period of 60 years for a suit 'by a mortgagee for foreclosure or Sale.' It was pointed out that in Vasudeva Mudaliar v. Srinivasa Pillai ('07) 30 Mad. 426 the Judicial Committee of the Privy Council had authoritatively Laid down, on a true construction of this article, not only that it was applicable to English mortgages, but that it was limited in its application only to this class of mortgages, in which alone the suit could be, and always was, 'for foreclosure of sale.'
12. The only point therefore, said Mr. Gupta, that was left open for argument was whether by reason of the subsequent alteration of the law by Act 20 of 1929 regarding the remedies open to an English mortgagee, this suit could still be held to come under Article 147. It would appear that by Section 31 (c) of the said Act, a new Clause (a) was substituted in Section 67, T.P. Act, which took away the right of an English J. mortgagee to sue for foreclosure, and left him only the remedy to sue for sale. In other words, a suit to enforce an English mortgage could no longer be a suit 'for foreclosure or sale' within the meaning of Article 147, as interpreted by the Judicial Committee. There could be no doubt therefore that as a result of the amendment such a suit was to be governed by Article 132, and not Article 147. All the same, the question arose how far this would affect the present suit, seeing that the mortgages sued upon had been executed before the date on which the amending Act came into force, namely, 1st April 1980, though the suit was instituted after that date. Mr. Gupta himself drew attention in this connexion to the saving clause enacted in Section 68 of the Act, but contended that it contained no provision regarding limitation, and that consequently the period of limitation would be determined not by Article 147, but by Article 132 which was in force at the date the suit was brought. A closer examination of the terms of Section 63, however, revealed to Mr. Gupta the futility of this argument. It could not be questioned that in respect of the mortgages now in suit, a right to sue 'for foreclosure or sale' had already accrued before 1st April 1930, under the law as it stood before the amendment made by Section 31(c) of the Act, and one had only to refer to the terms of Clauses (c) and (d) of Section 63 to see that not only was such right expressly saved, notwithstanding the amendment, but that the amendment was not to affect in any way any remedy or proceeding, in respect of such right, which might in fact be enforced or instituted as if the amending Act had not been passed. It seems to be wholly immaterial that no specific provision was made to save the operation of any particular article of the Limitation Act.
13. In our opinion, the effect of Section 31(c), read with Section 63 of Act 20 of 1929 is that so far as English mortgages executed prior to 1st April 1930, are concerned, they must be deemed to be outside the scope of the amendment made by substitution of the new Clause (a) in Section 67, T.P. Act. This being so, it would be wrong to hold that though the remedy of a suit 'for foreclosure or sale' is still left open, Article 147, Limitation Act, must nevertheless be deemed to be abrogated in respect of such a mortgage. This article has been neither repealed nor altered, and there is no reason, therefore, why it should not be held to operate in cases to which it might still be in terms applicable. In this connexion Mr. Gupta sought to make a further point by referring to a special saving provision which was enacted by the Legislature in Section 15 (2) of Act 21 of 1929 in connexion with an amendment of Article 182, Limitation Act, made by Section 9 of that Act. By the amendment a new clause was added in Article 132 to the effect that a suit on a mortgage by deposit of title deeds should be governed by this article, so that the period of limitation for such a suit should be 12 years only. The Bombay High Court had held previously that such a suit stood on the same footing as an English mortgage, in which case the limitation would necessarily be 60 years under Article 147. There can be no doubt that the object of the amendment was to override this Bombay ruling. The Legislature apparently thought that this amendment required some express provision to be made in order that suits which had hitherto been believed to be subject to the 60 years' rule might not be suddenly found barred by limitation, and it is said that this led them to enact Section 15 (2), by which it was provided that notwithstanding anything contained in Section 9, a suit by a mortgagee for foreclosure or sale on a mortgage by deposit of title deeds might be instituted within two years from the date of commencement of the Act, or within 60 years from the due date of payment, whichever period expired first, and provision was also made for the saving of pending suits already instituted under the 60 years' rule.
14. Mr. Gupta stressed the fact that no such saving provision had been enacted with reference to the amendment introduced by Section 31(c) of Act 20 of 1929, and as the effect of the amendment undoubtedly was to take away an English mortgage from the scope of Article 147, Limitation Act, and bring it under Article 132, the argument was that in the absence of such a saving provision it must be assumed that the Legislature contemplated that Article 132, and not Article 147, should apply to such mortgages executed before the commencement of the amending Act. The argument seems to be wholly unconvincing. In the first place, it takes no account of the terms of Clauses (c) and (d) of Section 63 of Act 20 of 1929, which, as shown above, unmistakably save the right to sue for foreclosure or sale in respect of such mortgages. Secondly, as regards mortgages by deposit of title deeds, which were dealt with by the amendment under Section 9 of Act 21 of 1929, it will be seen that so far as it was intended to save the operation of Article 147 in the case: of such mortgages executed before 1st April 1980 of course on the interpretation that they stood on the same footing as English mortgages, the saving was effected not by Section 15(2), but by the provisions of Section 15(1), which in fact contained almost exactly similar clauses to Clauses (c) and (d) of Section 63 of Act 20 of 1929. As a saving provision, Section 15(2) was both useless and unnecessary : its real effect was to abridge the period of limitation under Article 147 from 60 years to 2 years from the date of the Act for this class of mortgages, on the basis that this article applied. It was only if the Legislature had intended similarly to cut down the period under Article 147 in its application to English mortgages that a provision like Section 15 (2) would have been really necessary in regard to such mortgages.
15. The first point taken by Mr. Gupta on the ground of limitation must consequently fail. The suit must be held to be governed by Article 147, Limitation Act, and not by Article 132. In that view of the matter, it becomes unnecessary to consider whether there was any payment of interest as alleged by the plain-tiff which prevented time from running. Mr. Gupta's next point on behalf of the appellants was that the plaintiff having taken a mortgage only of an undivided share in certain properties and there having been a subsequent partition between the mortgagors and their cosharer, the mortgage could be enforced only against the properties which fell to the share of the mortgagors as a result of such partition. In other words, it was urged that in the events which had happened, the plaintiff was limited as regards his remedy only to premises No. 5, Padma Nath. Lane, that being the property which had been exclusively allotted to the estate of Mohendra Nath Das under the final partition decree (Ex. D) in Charu's partition Suit No. 313 of 1909. Mr. Gupta was in fact invoking the principle which had been Laid down by the Judicial Committee of the Privy Council in the well-known case in Byjnath Lall v. Ramoodeen Chowdry ('74) 1 I.A. 106. That raises the question as to whether the conditions necessary for the application of this principle have been shown to exist in the present case.
16. It need not be disputed that a mortgagee of an undivided share of one cosharer takes the security subject to the right of the other cosharers to enforce a partition, and thereby to convert what was an undivided share of the whole into a defined portion held in severalty. The mortgagee however can neither compel a partition, nor claim to be a party to the partition proceedings as of right. All the same, Byjnath Lall v. Ramoodeen Chowdry ('74) 11. A. 106 is certainly authority for holding that after partition, his security will be upon the divided share or separate allotment of his mortgagor. In other words, he can have no recourse against the parcels allotted to the other cosharers with whom he has no privity of contract, but must pursue his remedy only against the properties that may be allotted to the mortgagor. In order however that the mortgagee may be so bound, it is a fundamental condition that the partition must be a fair and proper one, and that in fact is the underlying assumption in the judgment of their Lordships in the Privy Council case. Having taken a mortgage of an undivided share, the mortgagee could not of course complain, if, as a result of the partition which he could not resist, he was required to accept a substituted security in the shape of what was allotted in severalty to his mortgagor, but then the substituted security had to be a fair equivalent of the original fairly obtained. Merely because the original security was in respect of an undivided share, it did not follow that the mortgagee should be held bound by a partition to which he was not a party, even where it was shown that such share had not received a proper allotment and the partition was the result of a collusive or fraudulent arrangement between the mortgagor and his cosharers to the prejudice of the mortgagee. So to hold would be manifestly contrary to all legal principle, and Byjnath Lall v. Ramoodeen Chowdry ('74) 1 I.A. 106 most decidedly did not lend support to any such inequitable doctrine.
17. In fairness to Mr. Gupta it must be said that he did not contend for any such doctrine either. On the other hand, he conceded that he could succeed only if the partition on which his client relied was a fair and equal one, but he maintained that the only test of fairness or equality was to see whether or not the security of the substituted property allotted to the mortgagor was sufficient or not, He drew attention in this connexion to the terms of the final partition decree (EX. D) and the award of the Commissioner of partition on the basis of which the decree was passed, and also referred to an entry in the Corporation Assessment Book (Ex. c) which showed the annual valuation of Premises No. 5, Padma Nath Lane as Rs. 779. Mr. Gupta could not deny that the burden of proof in this matter lay entirely on his client. In any ease, it was for defendant 3 as appellant to displace the finding of the learned Subordinate Judge on this point, which was to the effect that the partition was such an 'iniquitous and irrational adjustment of properties' that by no stretch of imagination could it be held to affect the right, title and interest of a prior mortgagee in the position of the plaintiff. In our opinion, the appellant has wholly failed to establish this part of his case.
18. Let us see how the matter stands. From the narrative of facts already set out at some length, it will have appeared that by his conveyance (Ex. 3) Saradindu purported to buy only Charu's eight annas interest in the properties, and yet by the terms of the agreement of 4th August 1920, which was incorporated in the conveyance, he had stipulated for an allotment to him of 'sufficient properties' out of the joint estate, which in plain language could only mean the annexation of properties from the other moiety. It is said that the consideration for this was Saradindu's undertaking to pay off the secured liabilities in both shares, and Mr. Gupta asked us to hold that this undertaking had been duly implemented by his client, in so far as he made himself liable for the sum of Rs. 2,10,000 which was raised on mortgage from Suresh Chandra Chowdhury. As to this it is perhaps relevant to call attention to, a few facts as showing the attitude which Saradindu himself took up in the matter. In his written statement (para, 11), Saradindu indeed took the plea, disingenuous as it was, that he was 'not aware of any deed of agreement executed on 4th August 1920,' no doubt qualifying the statement by adding 'excepting what has been set out in the deed of conveyance itself,' and he definitely asserted that he was 'not bound by the terms of the said alleged agreement.' In his examination-in-chief also he stated explicitly that he 'did not undertake to pay up the debts due to the secured creditors of Charu Das and Mohendra Das,' though in cross-examination, in trying to explain his conveyance, he could not help contradicting himself by saying that he 'took personal responsibility with the executors and Charu' for paying up these debts. In any case, he maintained that the present plaintiff was not entitled to 'get any advantages' out of the agreement (para. 12), and further, pleaded complete ignorance of the plaintiff's mortgages (para. 21), making the same case also in his evidence. So far as the present plaintiff was concerned, Saradindu in fact showed little disposition on his part either to admit or to honour any such undertaking as was referred to by his learned advocate.
19. Even if one was to put aside these denials and evasions in Saradindu's pleading or evidence, and look into the documents which were supposed to create his right to an excess allotment on partition with the executors of Mohendra's estate, it would be seen that though the ostensible consideration for this was stated to be his willingness to accept liability for the secured debts of the executors, neither the agreement nor the conveyance contained any statement of the amount of such debts or any particulars thereof. There was only a statement as regards the total liability in Charu's share. It seems, however, only fair to hold that if there was a real intention on Saradindu's part to make himself answerable for the debts of Mohendra's estate, there should have been a clearer specification of the debts in the documents, and he would not have bound himself to take over an undefined or unascertained liability. It is also reasonable to suppose that in that case Saradindu would not have been content with anything short of a direct assignment of a share of Mohendra's estate from the executors. As it is, there is little reason to doubt that the trans- actions were not merely of a speculative character, as the learned Judge in the Court below seemed to think, but something more, namely, a device, though ill. conceived, to get hold of the properties in Mohendra's share under a cloak of seeming fairness. The device was clumsy too, in that the properties were to be transferred to Saradindu only as assignee of the other share.
20. We need not pause to consider the effect of the further recital in the agreement which seemed to suggest that the allotment of 'sufficient properties' to Saradindu was only to enable him by the sale of such properties to pay off the secured debts in both shares, besides, it may be added, paying himself back the sum of Rs. 29,000 which he was to advance to the Official Assignee as consideration for the conveyance. This would doubtless mean that Saradindu was not to acquire any beneficial interest in the properties which were to be allotted to him, whether from Mohendra's or from Charu's share, and such a meaning in fact seemed to receive support from the last clause in the deed, which provided that if any balance remained in his hands after the sale or any properties were not required to be sold, he was to make them over to Charu and the executors of Mohendra's estate. If the ostensible was the real meaning, it would of course strike at the very root of Saradindu's title, and for this, if not for any other reason, it is easy to understand why he should have been so anxious to disavow the agreement. All things considered, we have therefore no hesitation in holding that the agreement was not a bona fide transaction at all, insofar at any rate as it intended a transfer of any properties out of Mohendra's share to Saradindu. If then the conveyance was left to operate apart from and without the agreement, as Saradindu himself would seem to have contended for in his written: statement, it could be effective only as an assignment of the right, title and interest of Charu, 'and there could be no question of Saradindu's acquiring any interest in Mohendra's share.
21. Nothing is gained by referring to the mortgage deed which was afterwards executed in favour of Suresh Chandra Chowdhury. All that was recited in it was that a. loan of Rs. 2,10,000 was being raised on the security of the properties mentioned in the document 'for the purpose of clearing off incumbrances affecting (the) same,' but without any statement as to the extent of such incumbrances or of the respective liabilities of the several parties thereunder. The mortgage on the face of it purported to be free of all incumbrances. Saradindu's statement in his evidence is that at the time, of the mortgage he knew the amount of the secured debts in the share of Mohendra's executors, and both he and the mortgagee were satisfied that 'sufficient margin' would be left after paying off the due's of all the creditors. Saradindu has shown himself to be such an unreliable witness that no importance can be attached to his statements. In any case, the fact remains that the mortgage was Hot executed by Saradindu alone, but was a joint mortgage by the executors as well as by Saradindu and Charu, and it was executed by Saradindu on his part as purchaser of Charu's interest only. Saradindu could not obviously therefore affect thereby any interest other than Gharu's and it would not be reasonable to hold that by executing this mortgage he was accepting an obligation to repay any debts other than Charu's out of his share of the mortgage money.
22. It is significant that when Saradindu afterwards applied to be substituted in Charu's place in the partition suit and prayed for the appointment of a Commissioner of Partition, he annexed to his application copies of both the agreement and the conveyance, and yet he did not ask for allotment to him of 'sufficient properties' out of the joint estate. His prayer was only for an order that the Commissioner should be directed to make a partition in terms of the preliminary decree, and not of the agreement or the conveyance, that is to say, a division into 'two equal parts or shares' and allotment of one such 'equal half part or share' to either of the two parties. This might imply either that Saradindu was no longer minded to rely on the agreement, or that he could not justify its terms to himself. The first alternative is ruled out by the actual sequel which will be presently referred to, and the second therefore seems to be the more probable explanation. 'Whatever the reason, judging from his application to the Court, Saradindu did not at this stage appear to be claiming, upon partition, anything more than was properly attributable to Charu's moiety share: in other words, to all outward appearances, he seems to have adopted a perfectly correct interpretation of his rights as a purchaser of Charu's right, title and interest. In fact he did not care to raise any complications due to any supposed undertaking on his part to liquidate the secured debts of Mohendra's estate.
23. Turning now to the actual partition proceedings, it is not necessary to do more than refer to the return of the Commissioner of partition which was made a part of the final decree. Mr. Gupta would rely on it to prove the fairness of the partition, but could not deny that on the face of it, it showed that the Commissioner made an unequal division, and this he did, in spite of the fact, as the Commissioner himself recites in his report, that both the preliminary decree and the writ of commission had expressly directed a division into two equal halves. It was stated that the parties had agreed that the Commissioner should divide the properties into two parts as specified by them, and that he should make his award on an agreed basis, which he accordingly did. In our opinion, this one fact is sufficient to preclude any presumption of fairness that might otherwise be supposed to attach to a partition carried out under the directions of the Court. The partition here outwardly bore the imprimatur of the Court, but it was-in truth and substance the result of a private arrangement. And what was the arrangement Unquestionably, it was no more than giving effect to the agreement of 4th August 1920, for the allotment of 'sufficient properties' out of the joint estate to Saradindu, though Saradindu, as we have seen, had not ventured to ask for an order from the Court in terms of this agreement. Whether this amounted to practising a fraud on the Court need not be considered, but there can be little doubt that the partition as effected, seemingly under the auspices of the Court, was in fraud of the rights of parties like the present plaintiff who might already have acquired an interest in Mohendra's undivided share.
24. All that Mr. Gupta was in a position to point out from the Commissioner's award was that the total valuation of the properties which were divided was Rs. 2,14,187, and that Saradindu's allotment was charged with the payment of a sum of Rs. 2,10,000 which was stated to be due to Suresh Chandra Chowdhury under the mortgage of 5th October 1921, besides which Saradindu was directed to pay a further sum of Rs. 4171-8-0 as owelty to the estate of Mohendra. These figures, however, lead to such an obviously absurd result that it seems impossible to place any reliance on them as a test of fairness of the partition effected. Saradindu would really be saddled thereby with a liability in his share for an amount practically equal to the total value of the properties allotted in severalty to both shares. It is hard to believe that Saradindu would willingly accept such a position. If the agreement of 4th August 1920, was out of the way, as Saradindu himself would like to have it, there would indeed be no reason why at this stage, by a voluntary arrangement, he should take on himself a liability which was not properly his, and in the result, submit to what might be described as an onerous partition. On a consideration of all the attendant facts and circumstances, the conclusion seems to be irresistible that the whole scheme and design was to give the award a misleading appearance of fairness, knowing it to be unfair. The award, it will be seen, gives no separate valuations of the different items of properties under partition, and even as regards the total valuation, there is nothing to show that it represented the market value, and not merely a valuation for the purposes of the partition. The statement that the valuations had been considered by the parties at several meetings and duly accepted by them carries no assurance whatever.
25. There is also no independent evidence forthcoming in the present suit from which it might be possible to check the fairness of the partition, apart from the Commissioner's award which represented nothing more than the interested statements of the parties. The least that the contesting defendants could do, if they wanted to uphold the partition against stranger mortgagees of an undivided share, was to have put the Commissioner of partition as well as the surveyor who had valued the properties into the box, and also to have produced full details of the valuations of all the properties. There should further have been evidence to show what was the total amount due to Suresh Chandra Chowdhury under his mortgage, or what enquiries had been made to ascertain the creditors of either share of the estate or the extent of their claims. The only piece of evidence which Mr. Gupta was able to refer to was the extract from the Corporation Assessment Book, which showed the annual valuation of premises No. 5, Padma Nath Lane, the only property allotted to Mohendra's estate, as Rs. 779. We were asked to deduce from this the market value of the property, and to hold that it was sufficient security for the plaintiff's claim, but we find ourselves wholly unable to accept the suggestion. There is nothing to show whether the valuation of the premises was made under Clause (a) or Clause (b) of Section 127, Calcutta Municipal Act, 1923 (Bengal Act, 3 of 1928), but even taking the value to be 20 times the annual value, we are not prepared to say that this afforded sufficient margin to the plaintiff's security. Further, the point raised is robbed of all merit and grace alike by defendant 3's claim of priority, which will be the next point to be examined, and which, if given effect to, would add considerably to the burden of the security. We must hold accordingly that the final partition in Suit No. 313 of 1909 was not a fair or equal partition, within the meaning of the rule Laid down in Byjnath Lall v. Ramoodeen Chowdry ('74) 1 I.A. 106, and our conclusion therefore on the second ground urged by Mr. Gupta on the strength of that case is wholly and decisively against the appellant. In our opinion, the mortgage is enforceable not only against a half share of premises No. 5, Padma Nath Lane, but against a half share of every other item of property specified in the mortgage deeds, whether such property was in the hands of Saradindu or of any transferee from him.
26. Mr. Gupta's third point in the appeal was directed against the rejection by the Court below of his client's additional written statement which was filed on 29th April 1933. In this Saradindu sought to raise a new plea of subrogation by virtue of payment of certain prior mortgages of the aggregate value of Rs. 28,000, three of which were said to have been in favour of himself, and one (for Rupees 22,000) in favour of another party, Radha Nath Pal and Kanai Lal Pal. It was alleged that these mortgages had been paid off out of the money raised on mortgage from Suresh Chandra Chowdhury, and it was accordingly claimed that the plaintiff could not get a decree on his mortgages without redeeming the said prior charges by payment to Saradindu. Mr. Gupta pointed but in this connexion that in both the mortgage deeds of the plaintiff there was reference to the incumbrance in favour of Radha Nath Pal and Kanai Lal Pal.
27. In our opinion, no sufficient grounds have been made out why we should interfere with g the order of the learned Subordinate Judge. At the stage and in the circumstances the additional written statement was put in, we consider the Court was fully justified in rejecting it. There can be no doubt that thereby defendant 3 tried in effect to raise by way of amendment a new ground of claim which he had not set up in his previous pleading. In his original written statement he made the case that he was not bound or affected in any way by the plaintiff's mortgage, and he accepted the position that the plaintiff could proceed against the properties allotted to the share represented by Mohendra's estate. By the additional written statement he tried to throw on the plaintiff an additional burden, the effect of which, it might be said, would be to defeat the whole of the plaintiff's claim. Whether this was or was not introducing a totally inconsistent case in the sense that it involved 'a complete change of front in the defence,' Laird v. Briggs (1880) 16 Ch. D. 440 at p. 466, it was certainly a case which, in our opinion, the defendant could not be allowed to raise without obvious injustice to the other party. We also find it difficult to hold on the facts of the case 'that the application for amendment was made bona fide.
28. It is necessary and relevant in this connexion to refer to certain dates and proceedings from the order-sheet in the case which will speak for themselves. The suit was filed on 17th July 1933 and defendant 3 entered appearance a month later namely on 16th August 1933. Then on 2nd November following he filed his written statement, and on 20th of that month he filed the draft issues which he proposed. The issues were settled on 3rd January 1934. The case was thereafter fixed for peremptory hearing on 30th April 1934. On that date however, the defendant prayed for time, and similar applications were also made by him on various subsequent' dates. A petition for further time on the ground that defendant 3 was staying at Madhupur for a change was however rejected; on 14th November 1934. The previous adjournment had been taken on the self-same ground, and the Court considered the application to be frivolous and meant only to cause delay. Defendant 3's lawyers thereupon withdrew from the case, and the suit was heard ex parte and decreed in favour of the plaintiff. This led to an application by defendant 3 on 5th December 1934, under Order 9, Rule 13, Civil P.C, for setting aside the ex parte decree. A similar application was also presented on behalf of defendant 5, the Ramkrishna Mission. These gave rise to two miscellaneous cases (Misc. Jud. Cases Nos. 71 and 72 of 1934), but it appears that after the petitioner in each case had been examined, the parties came to terms, and on 16th February 1935, on the plaintiff agreeing to the restoration of the suit, an order was made setting aside the ex parte decree, the defendant paying the plaintiffs a sum of Rs. 125 as costs. It was after this that defendant 3 put in his additional written statement on 29th April 1935,. A similar further written statement was also filed on behalf of defendant 5. The plaintiff objected to the reception of these pleadings at this stage, and in the result, the Court made an order on 12th June 1935, rejecting the same. The order was in these terms : 'The written statements filed by defendants 3 and 5 after the restoration of the suit are rejected.'
29. It cannot be said that this was not a proper order to have made in the circumstances of the case. Mere delay in applying for amendment is of course no ground for refusing the application, in so far as it may be compensated for by the award of costs, which, as Bowen L.J., remarked, is the one panacea which heals every sore in litigation.: Cropper v. Smith (1884) 26 ch. D. 700 at p. 711. This, however, was not a case of mere delay, delay as there had been, the original written statement having been filed on 2nd November 1933 and the additional on 29th April 1935. There was something more, and it was that the new case was sought to be sprung upon the plaintiff for the first time after he had been induced to agree to a restoration of the suit, which, it is only reasonable to assume, he could not have done, had he had any idea of the further case he would be called upon to meet at the re-hearing. There is nothing to show that the facts which Saradindu set up in his additional written statement were new matter which was not within his knowledge or could not be ascertained by him much earlier, at any rate before the restoration order was made. Three of the prior mortgages he referred to in the additional written statement were said to have been in his own favour, while on his own showing the fourth had been expressly recited in the plaintiff's mortgage deeds. The alleged re-payment of these charges was supposed to have been made on behalf of Saradindu himself, as otherwise of course he could not be claiming priority over the plaintiff in respect thereof. It is impossible, therefore, to avoid the conclusion that the attempt he made to supplement his defence after the restoration of the suit was not only not bona fide, but was tantamount to clear breach of faith with the plaintiff. In this view of the matter, it is hardly necessary to do more than just indicate the other objections to the reception of the additional written statement. For one thing, the averments in it as they stand are not sufficient to found a plea of subrogation. The particulars regarding the alleged prior mortgages are themselves inadequate : there is no statement that the mortgagors were the mortgagors of the plaintiff, or that the properties mortgaged were the same. Secondly, it is not stated categorically that the payment had been made by or on behalf of Saradindu : all that is said is that these prior charges had been paid 'out of the consideration money of the mortgage in favour of defendant 4' (Suresh Chandra Choudhury). This mortgage was, however, as we have seen, a joint mortgage by the representatives of both Charu's and Mohendra's shares, and there is no reason, therefore, why the alleged payment could not be regarded as having been made by the executors. It is worth pointing out in this connection that from a list of documents filed on behalf of defendant 3 it appears that there was a reconveyance by Radha Nath Pal and Kanai Lal Pal in favour of the executors for a sum of Rs. 33,000 showing that the re. payment had been made by the latter, and not by Saradindu. Mr. Amarendra Nath Bose on behalf of the plaintiff-respondent further argued that on the admitted facts no case of subrogation could be made out, but we deem it sufficient to hold on the grounds already indicated that the additional written statement of defendant 3 (as well as that of defendant 5) was rightly rejected by the Court below. Mr. Gupta's third point in the appeal also consequently fails. There remains now the fourth and last point urged by Mr. Gupta, which he was enabled to advance by reason of the passing of the new Bengal Money-lenders Act, 1940 (Bengal Act, 10 of 1940) during the pendency of the appeal. A formal application under this Act was in fact presented before us on behalf of defendant 3. In our opinion, the appellant is entitled to relief on this application.
30. The application was resisted by Mr. Bose on behalf of the respondent an a number of grounds. His first point was that the relevant provisions of the Bengal Money-lenders Act, 1940, were ultra vires of the Provincial Legislature, but in view of a recent decision to the contrary by a Special Bench of this Court in Promode Kumar Roy v. Benoy Krishna Chakravarty : AIR1941Cal425 he did not argue the point, but merely desired that the Court should put on record this particular objection of his in order to entitle him to a certificate under Section 205, Government of India Act, 1935, for the purpose of an appeal to the Federal Court. We accept Mr. Bose's suggestion in this respect, and certify that the case involves a substantial question of law as to the interpretation of the Government of India Act.
31. Mr. Bose next urged that Saradindu was not a 'borrower' within the meaning of the Act, and hence not entitled to relief thereunder. In Sailendra Nath v. Amarendra Nath : AIR1941Cal484 Mitter and Khundkar JJ. held that a purchaser of the mortgagor's interest vis a vis the mortgagee comes within the definition of a 'borrower' given in Section 2 (2), which, it will be seen, includes a successor-in-interest of the original borrower, who is there referred to as 'a person to whom a loan is advanced.' Saradindu would accordingly, on the authority of this ruling, be a 'borrower,' provided of course it could be said that he was a purchaser of the right, title and interest of the executors of Mohendra's estate who were the mortgagors in this case. As we have seen, however, this last mentioned point is hardly sustainable, and in answer to Mr. Bose, Mr. Gupta accordingly preferred to follow the line of least resistance by arguing that under the provisions of the Act, it was open even to a person who was not a 'borrower' to show to what extent a 'borrower' was liable, if thereby he could obtain any relief. This, he maintained, would be sufficient for his purposes, inasmuch as a decree could be moulded under the Act only on the basis of the original borrower's liability. Admittedly, some of the mortgaged properties are in the hands of Saradindu, and a decree has been passed against him jointly with the other defendants. He would certainly be interested in the scaling down of the mortgage debt. We agree with Mr. Gupta that there is nothing in the Act which would prevent the granting of relief, if otherwise obtainable, at the instance of a person in the position of defendant 3. We must consequently overrule Mr. Bose's objection on this head. Mr. Bose's next point was that the present appeal was not an appeal pending in. respect of such a decree as was referred to in Clause (a) of Sub-section (6) of Section 36, and that it could not, therefore, attract the operation of Clause (b) of the said Sub-section under which only the appellant could invoke the jurisdiction of this Court in a pending appeal. Sub-section (6) of Section 36; by Clause (b) provides as follows:
(6) Notwithstanding anything contained in any law for the time being in force,--
(b) any Court before which an appeal is, pending in respect of a decree referred to in Clause (a) may either itself exercise the like powers, as may be exercised under Sub-sections (1) and (2), or refer the case to the Court which passed the decree directing such Court to exercise such powers, and such Court shall after exercise thereof return the record with the additional evidence, if any, taken by it and' its findings and the reasons therefor to the appellate Court and thereupon the provisions of Rule 26, of Order 41 of Schedule 1, Civil P.C, 1908, shall apply.
32. There can be no doubt that the Bengal Money-lenders Act contemplates the giving of relief both in cases where a decree has not yet been passed and in cases where a decree has been already obtained, and it appears to be the object of Sub-section (6) of Section 36 to lay down the procedure which should be adopted in applying for relief in the latter class of cases, Clause (a) dealing with applications to be made to the Court which passed the decree, including an executing Court, and Clause (b) with applications to be made to an appellate Court, if an appeal is pending. In either case it is provided that the decree in respect of which relief may be applied for under this Sub-section must be a decree as is referred to in Clause (a), that is to say, a decree which was passed 'in a suit to which this Act applies,' and which 'was not fully satisfied by the first day of January 1939.' It is obvious that such a decree must necessarily be in a suit instituted before 1st January 1939, as otherwise there could be no question of the decree not being satisfied, fully or otherwise, by this date.
33. The argument is that the decree in the present suit satisfies one of the conditions Laid down in Clause (a), namely that it was not fully satisfied before 1st January 1939, but that in view of the definition of a 'suit to which this Act applies' as given in the definition clause, Clause (22) of Section 2, it does not fulfil the other requirement that it must be a decree passed in such a suit. It may be mentioned that Sub-section (1) of Section 36 which confers certain powers on a Court for the purpose of giving relief to a borrower contains an important proviso, namely proviso (ii), which also makes reference in similar terms to 'a decree in a suit to which this Act applies which was not fully satisfied by the first day of January 1939.' The object of this proviso is to lay down that in exercise of the powers conferred by this Sub-section the Court shall not be entitled to do anything which affects any decree of a Court, other than a decree of the kind referred to above. Mr. Bose's argument seems to assume that a 'suit to which this Act applies' cannot by the terms of its definition include a suit instituted before 1st January 1939. That would of course involve an inherent repugnancy in the words used in Clause (a) of Sub-section (6) of Section 36, as well as in proviso (ii) to Sub-section (1). A reference to the definition contained in Clause (22) of Section 2 will, however, show that the assumption is wholly unjustified. A 'suit to which this Act applies' is no doubt defined to mean any suit or proceeding (of the nature therein described) 'instituted or filed on or after the first day of January 1939,' but the definition does not stop here : it adds thereafter the words 'or pending on that date,' showing clearly that a suit instituted before 1st January 1939, may come within the definition as well as a suit instituted on or after that date.
34. It should be added that by Clause (21) of Section 2, a 'suit' is defined to include an appeal. It might still be contended that a suit could not be regarded as 'pending' after a decree had been finally passed therein, merely because the decree still remains to be satisfied. But it is precisely to meet such an argument, as it seems to us, that the Legislature provided that suits in which unsatisfied decrees were outstanding on 1st January 1939, should come within the scope of the Act. It is only reasonable to construe a statute in a way which, if possible, would reconcile all its provisions. The interpretation we suggest would not only avoid repugnancy in the provisions of the Bengal Money-lenders Act, but give full effect to the object which the Legislature appears to have had in view in enacting this legislation.
35. The scheme of the Act is no doubt primarily to give relief in suits instituted on or after 1st January 1939, which is taken to be the material date irrespective of the date on which the Act actually came into operation but at the same time, suits instituted before 1st January 1939, are definitely not excluded as the definition itself will show. The latter category of suits come within the description of suits 'pending on that date,' the word 'pending' being for this purpose given an extended meaning so as not to be limited to suits in which no decrees have been passed, but also to include suits in which decrees have been already obtained, provided that such decrees were not fully satisfied by 1st January 1939. We adopt in this matter the view which was expressed by a member of this Bench in a suit on the original side, Suit No. 1146 of 1936 decided on 4th April Suresh Chandra v. Lal Mohan Chatterjee Reported in : AIR1942Cal121 . In the present case, the question is made easier by reason of the fact that the decree passed in the suit is under appeal, and the suit cannot, therefore, be said to have been finally determined. Prom this point of view the suit might well be regarded as still pending, but the matter is put beyond all doubt by the express provision in Clause (21) of Section 2 that a suit includes an appeal. We must hold, therefore, that Clause (b) of Sub-section (6) of Section 36, Bengal Money-lenders Act, applies to this case, and that under its provisions the borrower is entitled to such relief as the Court may think fit to grant in exercise of the powers conferred on it by Sub-sections (1) and (2).
36. As this is an appeal and the appellate Court will be finally making the preliminary decree in the suit, the provisions of Section 34, Bengal Money-lenders Act, will also apply, and the decree will have to be made in accordance therewith. Further, under Section 31, interest on the decretal amount will be withheld. The result, therefore, is that in our judgment the appeal fails and must be dismissed with costs, but the preliminary decree for foreclosure made by the Court below will be affirmed, subject to the modifications required under the Bengal Money-lenders Act. There can be no question in this case of 'reopening' a decree, and passing a 'new decree in accordance with the provisions of this Act,' as contemplated by Clause (a) of Sub-section (2) of Section 36, but relief will be given under Clause (c) of Sub-section (1) of the said section.
37. Consequently, we hold that in determining the amount to be declared due at the date of the preliminary decree of this Court on account of principal and interest, the borrower will be released of all liability in excess of the limits specified in Clauses (1) and (2) of Section 30, interest being calculated from the beginning at the rate of 8 per cent. per annum simple. The amount of the decree will be varied accordingly. The parties are not agreed as to this amount, which in fact is the figure to be substituted for the sum of Rs. 15,000 awarded in the trial Court's decree. They agree however that the matter should be referred to the Registrar of the appellate side to make the calculation in accordance with the directions we have given, and they further agree that any figure which the Registrar may arrive at, after hearing the parties and considering such materials as they may place before him, will be accepted by them as final and incorporated in the decree. In determining the sum due, it is agreed that the (Registrar will take into account the amount deposited in the Court below by the appellant to the credit of the plaintiff, which the plaintiff will be at liberty to withdraw, and also the amounts realized by the plaintiff from the mortgaged properties of which he obtained possession of execution of the final decree passed by the trial Court. To the amount so determined will be added the costs of the suit and of the appeal, and such costs as this Court may allow in respect of the inquiry before the Registrar.
38. In accordance with the provisions of Section 34, Bengal Money-lenders Act, we direct that the amount so to be declared due including costs shall be paid in two equal instalments, the first of such instalments to be paid on or before the 30th day from the date on which the preliminary decree is drawn up and signed, and the second within a year from the date of such payment. It is further directed that such further amount as this Court may adjudge due in respect of subsequent costs, charges and expenses as provided in Rule 10 of Order 34, Civil P.C., shall be paid within a month of the payment of the last instalment aforesaid. The decretal amount shall carry no interest. We further direct that in default of payment as aforesaid of the amount due under the preliminary decree, the plaintiff shall be entitled to apply for a final decree for foreclosure, subject to the provisos to Clause (a) of Sub-section (1) of Section 34, Bengal Money-lenders Act. As a result of the appeal, the final decree which was made by the Court below on 22nd November 1986, is hereby vacated. The Registrar is requested to take up the enquiry at an early date. Let a self-contained preliminary decree for foreclosure be drawn up in accordance with the directions given in this judgment after the Registrar has made his report.
39. I agree.
[The parties then settled by agreement the amount of the decree.]