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Bipra Charan Sarkar and anr. Vs. Sm. Rupeswari Dasi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 479 of 1946
Judge
Reported inAIR1951Cal523,55CWN131
ActsCode of Civil Procedure (CPC),1908 - Order 34, Rule 1
AppellantBipra Charan Sarkar and anr.
RespondentSm. Rupeswari Dasi
Appellant AdvocateApurbadhone Mukherjee, Adv.
Respondent AdvocateJnanendra Nath Bakshi, Adv.
DispositionAppeal dismissed
Cases Referred & Harpershad v. Dalmardan
Excerpt:
- .....favour of rupeswari was a benami one are not correct. as rupeswari had not been impleaded in the mortgage suit the pltfs. were not entitled to have their title declared in respect of the 6 bigha plot settled with rupeswari.2. the trial court held that the rent sale by the landlord was not a collusive one & that rupeswari had taken settlement of the 6 bigha plot now in suit in her own name. the learned munsif further held that the pltfs. were entitled to ask rupeswari to redeem the mortgage but the suit as framed for delivery of possession on declaration of title was dismissed.3. the lower appellate court affirmed the decision of the trial court both as regards the bona fides of the rent sale as also the settlement in favour of rupeswari. it was also found that though the pltfs. were.....
Judgment:

R.P. Mookerjee, J.

1. The property in suit originally belonged to three brothers Doman, Satish & Ananta. In 1929 Doman as karta of the joint family executed a mortgage in respect of the lands in dispute as also other lands in favour of the pltf. Before the mortgage dues had been cleared it is alleged that Doman in collusion with the landlord had got the properties sold in execution of a decree for the realisation of arrears of rent. The landlords were auction purchasers. The landlord settled 6 bighas out of 12 bighas to Rupeswari, mother of Satish & Ananta--she is deft, 1 in the present suit. The remaining 6 bighas of the said property was settled by the landlord in favour of Damayanti, wife of Doman. In 1940 the pltf. brought a suit to enforce the mortgage which had been created by Doman in 1929. Satish & Ananta, the brothers of Doman as also Damayanti, widow of Doman were made defts. Rupeswari in whose favour the landlord had made a fresh settlement of half the lands was not impleaded. The pltf. obtained an ex parte decree & ultimately the properties mortgaged were sold in execution & purchased by the pltf. The pltf. further stated that they had obtained possession on 11-12-1942. Defts. having resisted, the present suit was filed on 17-6-1944. The parties impleaded were Satish, Ananta & Damayanti as also Rupeswari. The pltfs. prayed for declaration of their title & for recovery of possession of the lands in suit. The defts. contend that the pltfs. allegations that the rent sale was a fraudulent one or that the settlement in favour of Rupeswari was a benami one are not correct. As Rupeswari had not been impleaded in the mortgage suit the pltfs. were not entitled to have their title declared in respect of the 6 bigha plot settled with Rupeswari.

2. The trial Court held that the rent sale by the landlord was not a collusive one & that Rupeswari had taken settlement of the 6 bigha plot now in suit in her own name. The learned Munsif further held that the pltfs. were entitled to ask Rupeswari to redeem the mortgage but the suit as framed for delivery of possession on declaration of title was dismissed.

3. The lower appellate Court affirmed the decision of the trial Court both as regards the bona fides of the rent sale as also the settlement in favour of Rupeswari. It was also found that though the pltfs. were entitled to call upon the owner of the equity of redemption who had been left out in the mortgage suit to redeem the mortgage but such a suit could be made (sic) only so long as the pltf. could bring a fresh suit on the mortgage. In this particular case the present suit was brought when a suit to enforce the mortgage was barred. Rupeswari, therefore, could not be compelled to redeem the mortgage. The appeal was accordingly dismissed.

4. On the question whether the purchaser at a mortgage sale can successfully claim possession against the purchaser of the right of redemption, who had not been made a party in the mortgage suit, & if he can on what condition, there has been a great divergence in the views expressed in different cases in this Court as also in other Courts. In the circumstances this Bench as constituted has to decide which current of decisions is to be followed. The weight of authorities as in recent decisions of this Court seems to support the defts. in the present case. Reference may in this connection be made to Guru Prosad v. Tarini Charan, 42 C. W. N. 1065 & the earlier decisions referred to therein. It has been held that where prior mortgagee does not make a subsequent mortgagee a party to his mortgage suit & in execution of the mortgage decree, obtained in such a suit, purchases the property himself, a suit to recover possession of such property from the subsequent mortgagee, who has purchased the mortgage property in execution of his decree, is not maintainable & the subsequent mortgagee is not bound to redeem him if such suit is instituted after the period of limitation to enforce the mortgage. See also Dhapubai Mini v. Chandra Nath Chakraburty, 42 C. W. N. 721, Jagat Chandra v. Abdul Rashid, 38 C. W. N. 1178.

5. Reliance has also been placed in the later decisions on Bijoy Charan v. Rudrabageswari, 51 C. L. J. 70 as supporting the view expressed in Jagat Chandra v. Abdul Rashid, 38 C.W.N. 1178.

6. A somewhat contrary view had been ex-pressed in some of the earlier cases & reference may be made amongst others to Niharmala v. Sarojbandhu, 37 C. W. N. 897, Gangadas Bhatak v. Jogendra Nath, 11 C. W. N. 403 & Harpershad v. Dalmardan, 32 Cal. 891.

7. In this view this appeal is dismissed. In the circumstances of the case there will be no order for costs in this Court.

8. Leave to appeal under Clause 15 of the Letters Patent is granted.


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