19 of 1948 arising out of the Judgment and Decree dated the 27th September, 1947, of the Court of the Subordinate Judge, Third Court of Zillah, 24Parganas at Alipore in Miscellaneous Judicial Case No.
2,39,099 at which the mortgagees had purchased those properties would be balanced against the amount then due to them under the decree.
The mortgagors were to pay to the mortgagees the successive annual instalments on or before the same date of the succeeding years on which the first instalment became payable and they were also to pay the annual revenue of the aforesaid properties that would become payable after they were restored to possession kist by kist, as they fell due, at least three days before the kist dates and file the challans in the Court below in proof of payment within ten days of the payments.
Shri S. Ghosh appearing for the appellants before us urged that the bulk of the properties which were the subject matter of the new decree had gone to Pakistan after the 26th January, 1950, being situated in East Pakistan and the High Court at Calcutta had after the 26th January.,
He also directed the restoration of the properties purchased by the decree holders.
An appeal was preferred to the High Court of Judicature at Calcutta.
These sales were duly companyfirmed and the auction purchasers took delivery of possession of different items of property on different dates between the 25th June, 1933, and the 9th March, 1936.
If thereafter any amount still remained due to the mortgagees under the decree they were entitled to apply in the Court below for a decree for the balance under Order XXXIV, rule 6, of the Civil Procedure Code.
The mortgagors were alleged to have companymitted default in the payment of the second instalment which was due in any event on the 28th March, 1947, and also in the payment of the revenue kist and the cesses which were due on or about that date.
There being default in payment of the mortgage amounts a suit to realise the mortgage securities was filed on the 10th March, 1926, in the Third Subordinate Judges Court, Alipore.
An enquiry was ordered into the mesne profits for the period between the 15th September, 1941, till the restoration of possession to the mortgagors and the mortgagors were at liberty to set off the amount that might be decreed in their favour for mesne profits towards the instalment that fell due in the year in which the amount was declared by the Court below and the next succeeding years till the said amount was wiped off.
3,899 and delivery of possession of these properties was duly given to them on the 6th July, 1940.
The aecree holders obtained on the 13th December, 1937, a personal decree under Order XXXIV, rule 6, of the Civil Procedure Code for the balance due to them, viz.,
This personal decree was also executed and some properties of the mortgagors were purchased by the decree holders on the 8th August, 1939, for Rs.
The mortgaged properties were put up for sale in execution proceedings in 1930 and the decree holders purchased the properties at auction sales on the 29th February, 1932, and the 23rd April, 1935, for an aggregate amount of Rs.
Appeal from the Judgment and Decree dated the 27th April, 1950, of the High Court of Judicature at Calcutta Sen Chunder JJ.
The said sum was directed to be paid by the judgment debtors to the decree holders in fifteen equal annual instalments.
The learned Subordinate Judge rejected these applications by his order dated the 27th September, 1947, holding that there was numberdefault in the payment of revenue and cess and that the default in payment of the second instalment though it had accrued was due to the wrongful acts of the decree holders themselves and that the, decree holders were number entitled to take advantage of their own wrong.
1 to 3 and Jyotish Chandra Acharya Choudhury, the appellant No.
The appeal was allowed on the 27th April, 1950.
The sum of Rs.
He further urged that the order of rerestoration of the properties was number appealable and that in any event numberdefault had been companymitted by the mortgagors.
But he companytended that paragraph 4 2 did number save the appeal which had been filed by the mortgagees after the 15th August, 1947.
1947, and they were saved by the provisions of paragraph 4 1 which provided for the companytinuance in the same Court of these proceedings as if the said Act that is, Indian Independence Act, 1947, had number been passed.
The mortgagees therefore made applications in the Court of the Third Subordinate Judge at Alipore on the 6th September, 1946, and the 18th April, 1947, asking for re restoration of the properties.
3,76,324 12 4.
A preliminary mortgage decree for Rs.
The mortgagees were ordered to put the mortgagors in possession of all the properties they had purchased in execution of the reopened decrees and render to them an account of the mesne profits of those properties from the 15th September, 1941, till they restored or relinquished possession to the mortgagors of the companylection papers of those properties.
4,21,851.1 6 was passed on the 4th April, 1929, and a decree absolute for sale was passed on the 13th September, 1929.
3,76,324 12 6 was declared to be due by the mortgagors to the mortgagees and the mortgagors were to pay the same in twenty equal annual instalments the first of such instalments to be paid on or before the first anniversary of the date on which the mortgagees restored or relinquished possession of all the properties purchased by them in execution to the mortgagors or of the date on which they delivered to the mortgagors the companylection papers as therein mentioned, whichever date was later.
69 of 1952.
By their judgment and decree dated the 29th June, 1944, the High Court affirmed the decree of the Court below with some substantial variations and passed a new decree in favour of the mortgagors.
Several defaults were alleged but only two defaults were pressed, one in regard to the payment of the second instalment which was due on the 28th March, 1947, and the other in regard to the payment of the revenue and the cesses of the Noakhali properties due also on the same date.
4, sons of the mortgagor filed on the 9th December, 1940, a petition under section 36 of the Bengal Money Lenders Act Act X of 1940 for reopening the mortgage decree and the personal decree.
2,35,200.
31 of 1947.
The Judgment of the Court was delivered by BAAGWATI J. This is an appeal against the judgment and decree of the High Court of Judicature at Calcutta reversing the order of the Third Subordinate Judge, Alipore, dismissing the respondents applications for re restoration of certain immovable properties.
The present respondents preferred, on the 19th June, 1943, an appeal to the High Court of Judicature at Calcutta and cross objections were filed by the said Kshitish Chandra Acharji Choudhury and appellant No.
CIVIL APPELLATE, JURISDICTION Civil Appeal No.
The road, public works and education cesses and rent due to the superior landlords were also to be paid similarly by the mortgagors and in default of payment of any one instalment or cesses or rent within the time prescribed, the mortgagors were entitled to get back possession of the said properties from the mortgagors and in that event the sum of Rs.
By an order dated the 25th August, 1941, the learned Subordinate Judge reopened the decrees and on the 10th May, 1943, passed a new decree for a sum of Rs.
The delivery of the companylection papers was however given on the 28th March, 1945.
1950, numberjurisdiction and power to determine the appeal and to pass an order relating to the immovable properties situated in foreign territories.
Possession was delivered to the mortgagors on the 5th October, 1944.
One Romesh Chandra Acharji Choudhury deceased predecessor in interest of the appellants borrowed on the 16th August, 1918, Rs.
Kshitish Chandra Acharji Choudhury, since deceased, the predecessor in interest of the appellants Nos.
Sukumar Ghose for the appellants.
in Appeal from Original Decree No.
Rs, 3,30,903.
1,60,000 and Rs, 73,000 from the predecessors in interest of the respondents under two deeds of mortgage.
Bankim Chandra Banerji and R. R. Biswas for respondents Nos.
April 26.
1, 2, 8 9.
In support of his first companytention reliance was placed on paragraph 4 2 of the Indian Independence Legal Proceedings Order, 1947, which ran as under Notwithstanding the creation of certain new Provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independence Act, 1947 Any appeal or application for revision in respect of any proceedings so pending in any such Court shall lie in the Court which would have appellate, or as the case may be revisional jurisdiction over that Court if the proceedings were instituted in that Court after the appointed day The applications for re restoration of the properties were pending before the Third Subordinate Judge at Alipore on the 15th August.,
