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Mohesh Chandra Mukherjee and ors. Vs. Umesh Chandra Ghosal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in29Ind.Cas.742
AppellantMohesh Chandra Mukherjee and ors.
RespondentUmesh Chandra Ghosal and ors.
Excerpt:
possession, suit for - party interested in the equity of redemption not made party in suit on mortgage, right of--decree to be conditinal on payment of mortgage--money. - .....to 6 enforced their mortgage. defendants nos. 1 to 6 have given us an explanation how they came to omit the plaintiffs. indeed they go so far as to contend that they were entitled to omit them. we are unable to accept that argument. but, on the other hand, we think that the decree which grants the plaintiffs possession without any provision as to payment of what may be due under the mortgage to the defendants, nos. 1 to 6 cannot be supported. we, therefore, set aside the decree of the lower appellate court and send back the case to the court of first instance in order that it may be there determined what, having regard tc all the circumstances in the case, is a proper gum to be paid by the plaintiffs for the purpose of redeeming their share in the property in suit.2. we think that the.....
Judgment:

1. This is a suit for recovery of possession by the plaintiffs, who allege with truth that being interested in the equity of redemption in the property they were omitted from the suit whereby the appellants-defendants Nos. 1 to 6 enforced their mortgage. Defendants Nos. 1 to 6 have given us an explanation how they came to omit the plaintiffs. Indeed they go so far as to contend that they were entitled to omit them. We are unable to accept that argument. But, on the other hand, we think that the decree which grants the plaintiffs possession without any provision as to payment of what may be due under the mortgage to the defendants, Nos. 1 to 6 cannot be supported. We, therefore, set aside the decree of the lower Appellate Court and send back the case to the Court of first instance in order that it may be there determined what, having regard tc all the circumstances in the case, is a proper gum to be paid by the plaintiffs for the purpose of redeeming their share in the property in suit.

2. We think that the costs of the two appeals, that is, in the lower Appellate Court and in this Court must be borne by the plaintiffs, but the costs of the suit already incurred and the costs yet to be incurred are left to the discretion of the Judgo by whom the case will be heard.


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