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Raja Peary Mohun Mukerjee Vs. Chandra Sekhar Sarkar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in33Ind.Cas.59
AppellantRaja Peary Mohun Mukerjee;isabella Robinson and ors.
RespondentChandra Sekhar Sarkar and ors.;chandra Sekhar Sarkar and ors.
Excerpt:
mortgage - redemption--previous suit by mortgagee for possession--decree, nature of--ejectment-decree suit for redemption, if barred--civil procedure code (act xiv of 1882), section 244--preliminary decree--appeal--final decree, no appeal against--appeal against preliminary decree, if barred. - .....1,424-8 (rupees one thousand four hundred and twenty-four annas eight only) a year, subject to any further reduction in case anything in excess of rs. 195-8 has to be properly paid to the representatives of the original mortgagor, and defendant no. 7 undertaking to pay to the mortgagees all arrears of rent up to the kist that fell due in chaitra last and undertaking to pay all future rent to the plaintiff beginning with the kist which will fall due in assar next, it is decreed that the property be forthwith redeemed.3. all attachments, if any, will be released. each party will bear its own costs throughout.
Judgment:

Lawrence Jenkins, C.J.

1. This litigation, which has been pending since the 21st January 1909, came before a Bench of two Judges by way of appeal who differed on a point of law; and it accordingly came before Mr. Justice N. Chatterjea and myself under Section 98 of the Code. We expressed our opinion on the point of law referred to, and being the Bench now taking the group the case has come before us for final disposal.

2. We have experienced some difficulty in determining how to dispose of the case, as unfortunately the two learned Judges did not make alternative decrees as would be the convenient procedure where powers under Section 98 are brought into operation. But the parties before us have taken up a very sensible attitude and enabled us to arrive at what is an approximation at any rate, to a just result. With the approval of the parties, the decree that we now pass will be in these terms the plaintiff and the mortgagees waiving all accounts as between themselves and the plaintiff consenting to accept defendant No. 7 as his tenant on the terms of the dar-ijara for a term of years which will expire in September 1922 at a rent of Rs. 1,424-8 (rupees one thousand four hundred and twenty-four annas eight only) a year, subject to any further reduction in case anything in excess of Rs. 195-8 has to be properly paid to the representatives of the original mortgagor, and defendant No. 7 undertaking to pay to the mortgagees all arrears of rent up to the kist that fell due in Chaitra last and undertaking to pay all future rent to the plaintiff beginning with the kist which will fall due in Assar next, it is decreed that the property be forthwith redeemed.

3. All attachments, if any, will be released. Each party will bear its own costs throughout.


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