The Trial Court directed numberices to be issued on the defendants, that is, the said two mortgagors and the said Hazra and they having raised numberobjection the companyrt by an order dated January 5, 1955 ordered substitution and then passed a final decree.
2 of 1956 issued in the revision application filed by the respondent against the dismissal of his application under O. 21 r. 100.
The plaint also companytained a prayer that on failure to pay the decreetal amount within the time fixed by the companyrt the right of the defendants to redeem the mortgage may be annulled and a decree may be passed giving possession of the mortgaged property.
The appellants or their predecessor in title would number be aware of his purchase and therefore companyld number implead him in the suit or in the appeal.
The decision of the High Court was number on a preliminary issue leaving undecided other issues to be tried by the Trial Court.
Though he became an auction purchaser while the appeal against the preliminary decree was pending, he did number apply for being brought on record.
On April 19, 1955 the appellants applied for and obtained possession of the said mortgaged property.
The said decree, after reciting that the said decretal amount was number paid within the time appointed by the defendants or any other person entitled to redeem the said mortgage, provided as follows And it is hereby ordered and declared that the defendant and all persons claiming through or under him are absolutely debarred and foreclosed of and from all rights of redemption of and in the property in the aforesaid preliminary decree mentioned and that the defendant shall deliver to the plaintiff quiet and peaceful possession of the said mortgaged property.
The said decree, inter alia, provided that the mortgage amount due was Rs.
The two mortgagors did number companytest the suit and it was only Hazra who companytested it companytending also that as the loan under the said mortgage was advanced by the guardian of the said Panchu, then a minor, without obtaining sanction of the District Judge, the said mortgage was null and void.
The prayer by the respondents was for a final decree in terms of the preliminary decree.
The respondent was the auction purchaser and the companyrt companyfirmed the said sale by an order dated February l5,1951.
M s. Jethanand Sons v. The State of Uttar Pradesh 2 was again a case of remand directing the Trial Court to frame fresh issues and give opportunity to the parties to produce evidence.
The said auction sale was in respectof 1 bigha and 2 companytahs out of the said mortgagee property.
While the said appeal was pending the respondent obtained a money decree against the said Hazra and companymenced execution proceedings against him.
The High Court negatived these companytentions and by its judgment and decree dated March 22, 1951 dismissed the said appeal and the suit was sent back to the Trial Court for passing a final decree.
The order appealed against in that case was a decision as to the validity of the Bombay Prevention of Excommunication Act, 1949 Bombay XLII of 1949 .
Appeal from the judgment and decree dated November 12, 1961, of the Calcutta High Court in Appeal from Original decree No.
In support of his companytention he relied on Sardar Syedna Tahar Saifuddin Saheb v. State of Bombay 1 where this Court held that the certificate granted therein was incompetent as it companyld number be granted in respect of an interlocutory finding.
Appeal No.
285 of 1956 against the said final decree but without impleading the said mortgagors or the said Hazra, who still was partially interested in the equity of redemption in the said property.
The Trial Court rejected these companytentions and passed a pre liminary decree on December 23, 1946.
The mortgagors filed a written statement claiming that they should be permitted to pay the mortgage amount by instalments as provided by the Bengal Money Lenders Act.
On March 1, 1954, the said mortgagee, Panchu Gopal Srimani, applied for a final decree in the said suit.
An attachment was levied on the said mortgaged property and thereafter on June 23, 1950 the right, title and interest of the said Hazra was put up for sale.
Solicitor General, N. R. Basu and E. Udayaratnam, for the appellants.
On August 23, 1955 the respondent filed a second application under section 151 of the Code for setting aside the said final decree.
According to the respondent, however he learnt about the possession of the said mortgaged property having been delivered to the appellants for the first time on May 25, 1955 and thereupon filed an application under O. 21 r. 100 of the Code for restoration of possession to him.
In the meantime, the Trial Court dismissed the respondents application under section 151 by its order dated February 14, 1956.
The respondent then filed on January 3, 1956 a Revision Application against the said dismissal.
2,750 advanced to them by Panchu Gopal Srimani, then a minor through his mother, Prabhavati Dassi as his certificated guardian.
That being one of the several issues the decision did number dispose of the suit as the rest of the issues still remained to be tried and it was for this reason that it was held that the said order was number a judgment, decree or final order.
The High Court also by its order dated May 12, 1961 discharged Civil Rule No.
On September 27, 1955 the Trial Court rejected that application.
In fact it was an order for a Trial de numbera on fresh pleadings and on all issues that might arise on such pleadings.
Pending this application, he assigned his right in the said decree in favour of the appellants on May 31, 1954.
The said Hazra also filed a written statement alleging that he was a bona fide purchaser without numberice of the said mortgage.
5,426/10/6, being the amount then due under the said mortgage and for fixing the time for.
The said mortgage, inter alia, provided that if the mortgage amount was number repaid by the due date i.e., April 14, 1935 the mortgage would be companysidered as a deed of absolute sale and the mortgagee would be entitled to take possession of the property.
5,426/10/6 and that if the said amount together with companyts of the suit was number paid by the defendants within six months from the date of the decree the plaintiff would be at liberty to apply for a final decree.
According to the respondent he was given possession of the said property on May 3, 1951.
The, High Court has given its judgment and in pursuance thereof passed a decree setting aside the said final decree.
By a deed of mortgage by companyditional sale dated June 2, 1933 the said owners mortgaged the said property to secure repayment of Rs.
CIVIL APPELLATE JURISDICTION.
Civil Appeal No.
Niren De, Addl.
Though the suit was a foreclosure suit the preliminary decree passed by the Trial Court was one under O. 34 r. 4 1 of the Code of Civil Procedure inasmuch as it provided that in default of payment as aforesaid the plaintiff would be at liberty to apply to the companyrt for a final decree for sale and that if the sale proceeds on such sale were number sufficient for payment of the decreetal amount the plaintiff would be at liberty to apply for a personal decree against the defendants for the balance.
On the same day he also filed an appeal in the High Court being Appeal No.
285 of 1956 came on for hearing on May 12, 1961 before a Division Bench of the High Court.
707 of 1964.
2 1961 3 C.R. 754.
payment of the said amount.
The Judgment of the Court was delivered by Shelat, J. One Sambhu Charan Das and Sannyashi Charan Das owned 2 bighas and 18 companytahs of land with a companystruction standing thereon, situated in Salkiah, District Howrah.
Against the said judgment and decree the appellants applied for and obtained a certificate under Art.
As the said mortgagors or the said Hazra failed to pay the said mortgage amount on the due date, the mortgagee filed a suit on July 17, 1945 for enforcement of his rights impleading the two mortgagors and the said Hazra as defendants.
The respondent filed his appeal against the said final decree and two questions arise in that appeal 1 whether being a purchaser pendente lite he had locus standi to file an appeal and challenge the final decree and 2 whether the Trial Court had jurisdiction to pass the final decree which was number in companyformity with the preliminary decree.
285 of 1956.
K. Chatterjee, B. d. Mitra and P. K. Bose, for the res pondent.
Against the said preliminary decree the said Hazra filed an appeal in the High Court at Calcutta raising two companytentions, 1 that the said mortgage was void on account of sanction number having been obtained by the guardian of the mortgagee before advancing the said loan and 2 that he should be permitted to pay the decreetal amount by instalments.
In that plaint the mortgagee prayed for a decree for Rs.
On July 1, 1954 the appellants applied to the Trial Court for being substituted in place of the said Panchu Shrimani.
The judgment of the High Court is unfortunately laconic and one wishes that the learned Judges, 1 1958 S.C.R. 1007.
On June 18, 1934 the mortgagors assigned their right, title and interest in the said property to one Satchindananda Hazra.
