Decided on December 24,1970



- (1.) THIS is a suit brought by the heirs and legal representatives of mortgagors who failed to pay the mortgage debt, brought upon themselves a mortgage suit, submitted to a decree and thereafter unable to pay the decretal dues, adjusted the decree by transfer of the mortgaged properties so as to vest the properties fully and absolutely in the mortgagee in pursuance of a or agreement in writing. Under the said agreement, liberty was conferred on the mortgagee to transfer the properties by sale or sub-lease either in whole or in lots. After transfer of the properties the mortgagee's claim and all outgoings, costs, charges and expenses were agreed to be paid out of the proceeds of the properties and the balance left, if any, was to be divided between the mortgagors and the mortgagees in equal shares. After the lapse of nearly a quarter of a century, the mortgagee hits entered into an agreement for sale of the properties which the successors in interest of the mortgagors have challenged in this suit as an agreement for an improvident sale.
(2.) ON 29th August, 1919 one Sundarmull Rajgarhia and Ram Kumar Rajgarhia obtained a lease in perpetuity of certain lands, hereinafter referred to as the Bhukailash properties, situate at Kidderpore outside the original jurisdiction of this Court, consisting of a number of plots measuring in the aggregate 1414 big has more or less. On March 28. 1922 the lessees created a mortgage of certain immovable properties including the Bhukailash properties in favour of the Central Bank of India Ltd. to secure due repayment of loans and advances made or to be made by the bank. The mortgagors having made default in payment of the mortgage debt, the bank instituted a mortgage suit, being Suit No. 295 of 1924 in this Court. On April 21, 1926 a final decree for sale was passed by consent for Rs. 3,67,000/- with interest at 6% per annum. Under the terms of settlement the Receiver appointed in the mortgage suit sold two of the mortgaged properties-one in the district of Howrah and the other in Calcutta and paid the proceeds of sale to the mortgagee bank in partial reduction of the decretal sum.
(3.) PURSUANT to the said decree an order for sale of the mortgaged properties was made on the 13th December. 1927. In 1926 a suit being Title Suit No. 73 of 1926 was instituted in the Alipore Court for partition of the joint properties of the superior landlords, including the said Bhukailash properties.;

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