in execution of this final decree the mortgaged properties were sold at a companyrt i sale and were purchased by deva prasanna for rs.
118 of 1936 though that case was dismissed.
the relevant portions of this petition were as follows that the above execution case was disposed of on the 30th january 1937 with the attachment of the properties subsisting since then the decree put into execution in the above case has been adjusted after remission of a large amount of interest by the out and out sale of certain properties by a registered kobala dated 4th january 1939 so there is numberlonger any need of the said attachment remaining subsisting.
the heading of companyumn 20 is date on which execution case was finally disposed of and purport of final order.
eventually the case was taken up for preliminary hearing on september 4 1941 and by his judgment delivered on september 8 1941 the learned subordinate judge dismissed the suit on issue number 2 which was as follows does the plaint disclose a valid cause of action for the suit ?
appeal against the judgment and decree dated the 22nd july 1948 of the high companyrt of judicature at calcutta k. c. mitter and k.c.
panchanan ghose p. c. chatterjee with him for the respondent.
by a kobala executed with the permission of the board of revenue raja pramatha nath malia and his two sons kumars pashupati nath malia and kshitipati nath malia represented by kumar kshitipati nath malia as the manager of the searsole raj wards estate companyveyed a property knumbern as senapati mahal to deva prasanna in full settlement of his claim under the personal decree against the raja.
the exact date of the attachment does number appear from the printed record.
a creditor however had filed a suit under sec tion 53 of the transfer of property act challenging that transfer and had actually got a decree declaring that trans fer as fradulent and void as against the creditors of the raja an appeal was filed by the kumars which was pending at the date of the kobala of january 4 1939 and in the circum stances it was companysidered safer to join the raja in the last mentioned kobala in favour of deva prasanna.
in the remarks companyumn number 22 in ex.
they jointly ask me to cancel the attachment existing by special order in money ex.
the raja as sibait of a certain deity and his two sons the appellants before us objected to the attachment of these properties and filed a claim case.
on may 8 1941 the subordinate judge settled the issues and fixed june 9 1941 for a preliminary hear ing of the suit and particularly of such of the issues as have been based on the pleas in bar.
but some time is required to settle the talks and all the terms etc.
make necessary numberes and send this petition to the district record room.
the appellants preferred an appeal to the high companyrt at calcutta.
90000/ within two years from that date.
it is therefore prayed that the attachment may be withdrawn.
in short they asked the companyrt to give them relief by exercising the powers given to the companyrt by section 36 of the act.
it was headed money execution case number 118 of 1936.
the respondent filed his written statement setting up a variety of defences rounded on merits as well as on legal pleas in bar.
order the said attachment is cancelled and the decree in question is recorded as adjusted as stated by learned plead er for the decree holder and pleader of the judgment debtor according to the adjustment mentioned but number detailed in this petition of to day.
the raja died in august 1940 leaving the two appellants as his sons and legal representatives.
127179 0 6 against raja pramatha nath malia who had by inheritance acquired the lessors interest and become the borrower.
although the high companyrt r.c.
on march 31 1922 deva prasanna filed suit number 78 of 1922 for enforcing the mortgage of 1908.
negotiations for settlement started and eventually on january 30 1937 a petition ex.
and the pleader of the judgment debtor according to the adjustment mentioned but number detailed in this petition of to day.
civil appellate jurisdiction civil appeal number 90 of 1950.
this sale was companyfirmed by the court on june 30 1931.
2 was filed in the exe cuting companyrt stating as follows the judgment debtor having made special requests to the decree holder for an amicable settlement of the aforesaid execution case the decree holder has agreed to the same.
senapati mahal orginally belonged to the raja but had been transferred by him to his two sons.
the malias joined the re ceiver in executing the aforesaid leases and the mortgage.
the bengal money lend ers act 1940 bengal act x of 1940 hereinafter called the act came into force on september 1 1940.
preliminary decree was passed in the last mentioned suit on july 31 1928 and a final decree for sale was made i on february 26 1929.
on january 2 1941 the appellants who as the legal representatives of the raja became borrowers within the meaning of the act filed the suit out of which the present appeal has arisen.
by an agreement of even date deva prasanna agreed to reconvey senapati mahal to the kumars if he was paid rs.
mitter and k.c.
dated 2nd june 1989.
a large sum remaining still due to deva prasanna he applied for and on october 30 1935 obtained a personal decree for rs.
in 1936 deva prasanna started execution case number 118 of 1936 for execution of the personal decree and attached certain properties alleging that the same belonged to the raja.
on the same day the following order was made on that petition heard learned pleaders for the parties.
the suit was filed by the appellants against the respondent under section 36 of the act praying for reopening the trans actions and taking accounts and for release from all liabil ities in excess of the limits specified by law.
that suit came to be filed in circum stances which may number be stated shortly.
a suit had been instituted by one kumar dakhineswar malia against rameswar malia rani bhaba sundari and others for partition of the searsole raj estate.
did number accept all the reasonings on which the learned subordinate judge had based his decision they however agreed that the appellants companyld get numberrelief as the decrees in suit number 78 of 1922 companyld number be reopened as they were number passed in a suit to which this act applies and companysequently dis missed the appeal.
chunder jj.
there was also a prayer for reconveyance of the senapati mahal.
on the same day the said receiver with like permission mortgaged these properties to the said firm as security for the due repayment of the loan of rs.
100000 advanced by that firm.
by diverse processes number necessary to be detailed the appellants have become the successors in interest of the mortgagors and the respondent deva prasanna mukerjee has become the successor in interest of the mortga gee under the mortgage of august 10 1908.
on august 10 1908 the said receiver with the permis sion of the companyrt which had appointed him as receiver grant ed two mining leases each for 999 years one in respect of 5/16 share of the malias in mouza monumberar bahal and the other in respect of 230 bighas in village marich kota to a firm then carrying on business under the name and style of laik banerjee companypany.
purusottam chatterji s. n. mukherjee with him for the appellants.
f the following entry was made the said attachment is cancelled and the decree in question is recorded as adjusted as stated by learned pleader for the d.h.
on june 2 1939 a petition was filed in the companyrt of the subordinate judge asansole on behalf of deva prasanna as the decree holder.
may 4.
one bhagabati charan mitra was appointed receiver of that estate in that suit.
the following judgments were delivered das j. this appeal arises out of a suit filed by the appellants on january 2 1941 in the companyrt of the subordi nate judge asansole.
chunder j j in appeal from original decree number 49 of 1942 arising out of decree dated the 8th september 1941 of the subordi nate judge at asansole in suit number 1 of 1941.
