Mortgage Bond-Decree-Appointment of Manager-Act VIII of 1859,

section 243.

Act VIII of 1859, section 243, does not apply to a mortgage decree.

REGULAR APPEAL from an order passed by the Subordi

nate Judge of Gya.

In this case the usual decree on a mortgage bond was given against the judgment-debtor, in favor of the decree-holder. The judgment-debtor applied under Act VIII of 1859, section 243, to have a manager appointed of the property specified in the decree. The application was rejected and the judgment-debtor appealed. Baboo Aubinash Chunder Banerjea, for Appellant. Moonshee Mahomed Yusuf, for Respondent.

The judgment of the Court' was delivered by

AINSLIE, J.:

Section 243, Act VIII of 1859, does not apply to a decree founded on a mortgage when that decree declares that certain property is to be sold in satisfaction of the mortgage debt.

The creditor's right of sale in such case rests on the mortgage decree and not on the attachment in execution. The decree cannot be varied by proceedings in execution thereof. The appeal must be dismissed with costs.

I AINSLIE and KENNEDY, J.J.

AINSLIE, J.

Constructive notice-Execution purchaser-Contribution.

Per KENNEDY, J.-An execution purchaser takes subject to all equities affecting the judgment-debtor, and will be bound by constructive notice in the same way as an ordinary purchaser.

Kinderly vs. Jervis, 22 Beavan, 1; and Brewer vs. Lord Oxford, 6 De G., M. & G., 507, cited and followed.

If a decree declares a lien over A's property, for a certain sum, in favour of B, and subsequently A sells part of this property to B, and part to C, B cannot sue to enforce his lien against C's purchase without bringing his own into contribution.

APPEAL from a decree passed by Mr. Justice KENNEDY in the

Original Civil Jurisdiction of the High Court.

The essential facts of the case are as follows :-One Ram Chunder Haldar died in 1836, possessed of a four annas share in the property in dispute, No. 70 Muddun Burral's Lane, Calcutta, and other adjacent property. By his will he made Issur Chunder Mookerjea, Doorga Dass Mookerjea and Kistodhon Mookerjea his executors, and bequeathed to them eight aunas of his property absolutely, and eight annas in a trust for such son as his widowunder a power given by the will-should adopt. In pursuance of the power the widow adopted one Nilmony Haldar, who died childless in the year 1843, leaving his widow, Kamini Debi, him surviving.

Of the three executors, Issur Chunder alone proved the will. He took possession (it seems) of the property of the testator and wasted it. Previous to his death in 1843, Nilmony Haldar, the adopted son, frequently demanded, but without success, his eight annas share of the estate of Ram Chunder Haldar. Shortly after his death, his widow, Kamini Debi, instituted a suit against the three executors above-named for administration of the estate, for the eight annas share of that property which she claimed as heiress

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of her husband, Nilmony Haldar, and for an account. A receiver 1877-78 was appointed, and an injunction prohibiting any further dealing RAM LOCHUN with the property was issued against the executors in 1855. Some time previous to this order, Issur Chunder Mookerjea had died, RAMNARAIN. leaving his widow, Bindoo Bashini Debi, surviving, against whom the administration suit was revived.

On the 13th of August 1858, Doorga Doss Mookerjea and Kistodhon Mookerjea, the two surviving executors of Ram Chunder Haldar, sold the four annas share of Ram Chunder in the property No. 70 Muddun Burral's Lane, Calcutta, and in the adjacent property, to Kanai Lall Johurry, who proceeded to knock down the buildings thereon. Kamini Debi (who claimed two annas of Ram Chunder's four annas) instituted a suit against him, the surviving executors, and the widow of Issur Chunder Mookerjea to restrain Kanai Lall Johurry from pulling down the buildings, for compensation for the damage already done, and to have the rights of all parties declared. The injunction prayed for was granted; and as to the other relief this suit seems in some manner to have been consolidated with the administration suit. The date of this second decree was the 22nd of May 1860, and its effect is stated in the judgment of the Appellate Court, infra.

On the 28th of July 1862, a decree was passed in the administration suit, declaring, inter alia, Kamini's right to two annas of the property, No. 70 Muddun Burral's Lane, and adjacent property; that over Rs. 43,000 was due to the estate of Ram Chunder Haldar from the estate of Issur Chunder Mookerjea: appointing a receiver in default of payment of the Rs. 43,000 within fourteen days; and reserving further directions, with liberty to apply.

Meanwhile a suit for partition was instituted by Kanai Lall Johurry against Kamini Debi, and Bindoo Bashini, the widow of Issur Chunder Mookerjea. The suit was decreed, and partition by metes and bounds effected by an ordinary conveyance under he Statute of Uses, dated the 11th of February 1865. Under this leed of partition thirteen annas and four pie of the property in Muddun Burral's Lane minus two annas and eight pie of the amage done to the property, fell to the share of Kanai Lall ohurry; two annas of the property plus two anuas of the estilated damage, to Kamini Debi; and eight pie of the property VOL. I. o 1

Statement.

1877-78 plus eight pie of the estimated damage, to Bindoo Bashini RAM LOCHUN Debi.

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v.

The final decree in the administration suit was made in 1873. BAMNARAIN. It declared that Doorga Doss Mookerjea and Kistodhon MooStatement, kerjea were liable to pay into Court (and were ordered so to do) over Rs. 22,000, personally, and over Rs. 43,000 as heirs of Issur Chunder Mookerjea, to the credit of the estate of Ram Chunder Haldar; and it also declared Kamini's rights as heirs of the adopted son, Nilmony Haldar. The money was not paid into Court as directed.

In 1874, Ram Lochun Sircar, having purchased the full rights of Nilmony Haldar in the estate of Ram Chunder Haldar, from Kamini Debi and the reversioners, caused his name to be entered on the record of the administration suit instead of Kamini's. On the 16th of June 1875, he obtained a prohibitory order directing the defendants in the administration suit not to alienate any of the property which had formed part of the estate of Ram Chunder Haldar.

In 1876, Ram Lochun Sircar attached and sold and became himself the purchaser of some property belonging to Doorga Doss Mookerjea and Kistodhon Mookerjea, they not having paid into Court the money directed by the administration decree of 1873. The property, No. 70 Muddun Burral's Lane, was also attached ; but Ramnarain having intervened, Ram Lochun Sircar was referred to a regular suit. Upon this the present suit was brought. The defendants claimed as bond fide purchasers for value without notice of the plaintiff's title, which they did not admit. They did not set out their own title in their written statement.

Evans, for the Plaintiff.

Bonnerjee and Allen, for the Defendants.

KENNEDY, J. KENNEDY, J:

The facts which led up to this case prove, if proof were necessary, the propriety of the eloquent language of Mr. Justice PHEAR in Grose vs. Amritomoye Dossee, 4 B. L. R., O. J., 1, where he says: "This case unfortunately is of no exceptional character. It is but a type of what goes on daily. In every

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Court of Civil Justice throughout Bengal, speculative traffic in 1877-78 law proceedings has assumed the dimensions and respectability RAM LOCHUN of a regular trade. A large class in the community fattens and grows rich on the spoils of needy suitors. Litigation is promoted RAMNARAIN. and maintained without reference to the wishes or interests of KENNEDY, J. the nominal parties. As often as not, in cases where proprietary interests are in contest, the names on the record represent puppets which move at the bidding of persons who are in no way before the Court. The proceedings are carried on, not to adjust the rights of suitors seeking equity and justice, but in order that contingencies may be determined according to which the successful player in a great game of speculation will draw the stakes. I feel it impossible to exaggerate the magnitude of the evil. The benami system confined to the tenure of property is bad enough; but when it invades our Courts of Justice and takes away all sincerity and truth from the solemn administration of the law, it becomes destructive of the highest interests of society."

The plaintiff claims, as assignee of one Kamini Debi, to be entitled to an undivided share in certain property in Muddun Burral's Lane, or, at least, to a lien thereupon; and the history of the proceedings through which he seeks to make out his claim is an instructive illustration of the mode in which the "great game of speculation" may be played here. However that may be, if one of the gamblers has truly won the stakes, the Courts are bound to hand them over to him; but he certainly does not come before the Court in a way which entitles him to much sympathy or commiseration, if by any mistake in the rules of the game the golden prize escapes him.

The suit is for "possession of, or enforcement of a lien on, an individed two anuas share of No. 70 Muddun Burral's Lane," and he following are the important allegations :

"The said premises are bounded on the west by No. 71 Mudun Burral's Lane, belonging to the plaintiff; on the south, partly y the premises No. 69 Muddun Burral's Lane, belonging to the laintiff. One Kally Churn Haldar died in the year 1815, ossessed of about 4 beegahs and eleven cottahs of land in Iullungah, of which the said premises are a part, and the