THE 20TH NOVEMBER 1858. PRESENT: H. T. RAIKES, Esq., Judge. C. B. TREVOR, Esq., Officiating Judges. Special Appeals from the decision of Mr. T. C. Trotter, Additional CASE NO. 663 OF 1857. MEGLAL SINGH, (OoZURDAR,) APPELLANT, versus HURNATH SINGH, (PLAINTIFF,) AND NARAIN SINGII, (DEFENDANT,) RESPONDENTS. Vakeel of Appellant-Baboo Kishensukha Mookerjea. Vakeel of Plaintiff, Respondent-Moulvee Aftaboodeen Mahomed. CASE NO. 664 OF 1857. MEGLAL SINGH, (PLAINTIFF,) APPELLANT, versus NARAIN SINGH AND OTHERS, (DEFENDANTS,) AND HUR- Petitioner, on the 4th THESE cases were admitted to special appeal on the 3rd July 1857, under the following certificates recorded by Messrs. A. Sconce Bysakh 1256, and J. S. Torrens. purchased the rights and interests of certain parties in the village of Derseea, and on the 12th Assin 1253 another party, Hurnath Singh, obtained a mortgage, in the nature of a conditional sale, with possession, of the same property. Petitioner sued for the registration of his purchase, and the mortgagee sued for the foreclosure of his mortgage. The lower court on the same day decided the two cases, in the one declaring the mortgagee entitled to possession under the conditional sale which has become absolute, and in the other declaring that, although the sale to petitioner was bona fide, still as by the foreclosure of the mortgage the right of the mortgagor had lapsed, plaintiff's had lapsed also. Held that as the plaintiff, the mortgagee, alleges that he was in possession of and enjoyed the usufruct of the mortgagor's property, it was incumbent upon him to produce and verify the account as laid down in Section XI. Regulation XV. of 1793; and as this has not been done, the decision is in the present state defective. Cases remitted to the judge, with directions that he will remand them to the lower court, in order that the mortgagee may be called on to produce and verify his collection accounts. The court will then, having inspected them and heard any objection petitioner may have to offer, proceed to pass whatever order may seem necessary in the case of the mortgagee. Having decided that suit, the court will then pass whatever order the claim of petitioner may seem to call for. MR. A. SCONCE.-"Two suits were at one and the same time before the lower courts, in which this petitioner was interested. In the one case, as plaintiff, he sued to affirm the validity of a purchase made by him of a 1 dund, 2 c. 2 b. share in mouza Derseea: while a second suit was instituted by Hurnath Singh, as mortgagee of the same share, to declare his mortgage absolute. In this last case petitioner was an intervener. "The lower courts have in a manner affirmed both claims. The mortgage to Hurnath and the possession by him of the land mortgaged are both decided in his favor; and at the same time it is allowed that the purchase made by the petitioner was a valid transaction. "The two first points taken by petitioner in special appeal appear to me to be not admissible. First, he pleads that his registered deed of sale shoald be preferred to Hurnath's unregistered deed of mortgage but these two deeds being of a distinct character, priority of registry does not, by Act XIX. of 1843, create a preference in favor of one over the other. "Petitioner next urges that, as notice of foreclosure was not served on himself, he is not bound by the notice served on the mortgagor. It has been determined however (in December last) by a full bench, that notice on a mortgagor or his representatives is a sufficient service; and petitioner does not profess to show that the mortgagee had notice of his purchase. "Thirdly, petitioner pleads that, as he stands in the place of the mortgagor, and as it has been found that Hurnath, the mortgagee, held possession of the land from the date of the mortgage, before the mortgage can be declared finally foreclosed petitioner is entitled to have an account rendered of the proceeds realised by Hurnath, in order that the existence of a balance due to him at the date of foreclosure may be determined. "It is admitted that this issue was not raised below: but as the suits of the two plaintiffs were instituted, each for a distinct purpose, and as neither plaintiff was a defendant in the rival suit, it seems to be necessary for the ends of justice, before declaring the mortgage to be absolutely foreclosed, that the mortgagee should be called on for his accounts and his realisation tested. I admit the special appeal to try that point." MR. J. S. TORRENS. "I would reject these special appeals altogether. So far from the issue having been raised on the question of petitioner's having a right to an account, he pleaded in the lower courts that the mortgagee never held possession. It has been found that the mortgagee according to the evidence did hold possession; and petitioner cannot now, in special appeal, turn round, and take up a line of pleading directly the opposite of his allegations when the cases were before the lower courts." JUDGMENT. It appears that petitioner, on the 4th Bysakh 1256, purchased from certain parties their rights and interests in the village of Dersea, and that another party, Hurnath Singh, had obtained a mortgage in the nature of a deed of conditional sale, with possession, of the same property, on the 12th Assin 1253. In course of time the petitioner sued for a registration of his purchase, and the mortgagee sued for the foreclosure of his mortgage. In this last case the petitioner before us appeared as intervener, alleged that the mortgage deed was a fraudulent document, and denied the possession under it of the mortgagee. Eventually the lower courts on the same date decided the two cases in one, declaring the mortgagee entitled to possession under the conditional sale which has become absolute, and in the other declaring that, although the sale to petitioner was bonâ fide, still, as by the foreclosure of the mortgage, the rights of the mortgagor, plaintiff's vendor, had lapsed, plaintiff's had lapsed also. It has been urged, in special appeal, that, as the mortgagee acknowledges possession under the mortgage, he should on his own statement have been called on to prove and verify the accounts of the collection which he had made, instead of which the lower courts without regarding this point have given him a decree; that those decisions are defective; that the suit in which the mortgagor is plaintiff should consequently be remanded, and that in which petitioner is plaintiff should await the issue of the former. We think that, as the plaintiff, the mortgagee, alleges that he was in possession of and enjoyed the usufruct of the mortgagor's property, it was incumbent upon him to produce and verify, as required by Section XI. Regulation XV. of 1793, the accounts so produced, and this notwithstanding the nature of the answer put in by the petitioner before us. The attention of the lower court has not been directed to this point, and these decisions in their present state are consequently defective. It has been represented by the pleader of special respondent that the papers of the record have been destroyed in the disturbances which have taken place, and that no object can be obtained by remanding the cases. We cannot accede to this view. As it does not appear that the accounts of the mortgagee have ever been filed in court, they doubtless are still in existence; but be that as it may, we think that the requirement of the law must be carried out in the best mode possible under the circumstances. We, under the view expressed above, reverse the decisions of the court below passed in both the cases above referred to, and remit them to the judge, with instructions that he will remand them to the court of first instance, in order that the mortgagee, Hurnath Singh, may be called on to produce and verify his papers, showing the collections, &c. made from the mortgaged property. The court, having scruti M Remanded. The judge, when defend the bond, nised them, and having heard any objection to them that the petitioner before us may have to offer, will then pass whatever order may seem necessary in Hurnath Singh's case. Having decided that, the court will proceed to pass whatever order the claim of the petitioner, as put forth in his own suit, may seem to call for. THE 22ND NOVEMBER 1858. PRESENT: J. H. PATTON, Esq., Judge. H. V. BAYLEY, Esq., Officiating Judge. IN the matter of the petition of Punchumlal Misser, filed in this Court on the 19th January 1858, praying for the admission of a ant admitted special appeal from the decision of Mr. O. W. Malet, judge of Beerbhoom, dated 7th November 1857, reversing that of Baboo Nilmadhub Mookerjea, moonsiff of Gopalpoor, dated 28th November 1856, in the case of Punchumlal Misser, plaintiff, versus Meer Gholam Hossein and others, defendants,-Meer Ruhmanee (claimant,) third party. should have decided on the plea of execution under duress, before dismiss ing the suit. Vakeel of Petitioner-Baboo Bhoobunmohun Roy. This was a suit, brought by petitioner to recover a debt on joint bond, against the two defendants, Gholam Hossein and Wufan Beebee. Gholam Hossein admitted that he had signed the bond, but under duress, and had received no consideration, and that his co-defendant, Wufun, was not present on the occasion. Wufan denied its execution in toto. The moonsiff considered the bond established and the plea of duress not proved. The judge, without reference to the plea of duress, and on his opinion as to the difference in the handwriting of the signature, dismissed the suit. The special appeal is that, as Gholam admitted the execution of the deed and pleaded duress, that point should have been adjudicated by the judge. As it is clear that the judge failed to adjudicate the question of execution under duress, pleaded by defendant, we remand the case, in order that he may in the first instance adjudicate on that point, and then pass such orders as the justice of the case may require. THE 22ND NOVEMBER 1858. PRESENT: J. H. PATTON, Esq., Judge. H. V. BAYLEY, Esq., Officiating Judge. court reckoned IN the matter of the petition of Ishurchunder Kur, heir of the Remanded. late Sreenarain Kur, filed in this Court on the 13th April 1858, The lower praying for the admission of a special appeal from the decision of the limitation Mr. H. C. Halkett, officiating judge of Hooghly, dated the 12th to run from a January 1858, affirming that of Baboo Kashishur Mitter, principal sudder ameen of that district, dated 4th March 1856, in the case of Sreenarain Kur, plaintiff, versus Unodapersad Mookerjea and others, defendants. Vakeel of Petitioner-Baboo Sreenath Dass. It is hereby certified that the said application is granted on the following grounds. This was a suit for possession of 7 beegas 8 cottas of lakhiraj land. Both the lower courts gave plaintiff a decree for 5 beegas, 8 cottas, holding plaintiff's claim to 2 beegas barred by the statute of limitations, because defendants' father's purchase is dated 8th March 1832, and this suit was not instituted till 17th March 1855. On reference to the record, we find that the putnee purchase was in May or June 1849; and petitioner pleads, in special appeal, that that is the date from which limitation should be calculated, because his cause of action only accrued to him from that date. We think this plea valid, and remand the case to be tried on the merits with respect to the 2 beegas above referred to. wrong date. |