NARASIMHAM, J. - (1.) THIS is judgment debtors' appeal from a final decree dated 21 -10 -1944 passed by the Subordinate Judge of Cuttack in a mortgage suit. In order to appreciate the points involved in this appeal it is necessary to describe briefly the previous history of this protracted litigation.
(2.) PATIA estate known as Killa Patia is an impartible estate in Cuttack district whose proprietor was one Raja Raghunath Deb in 1913. On 26 -2 -1913 he executed a simple mortgage for as. 1,07,000 mortgaging the entire estate in favour of one Bhaban Sahu, the predeoessor -in -interest of the re3pondent -deoree -holders. Again on 13 -8 -1913 he executed a second mortgage in favour of the same Bhaban Sahu for as. 5,000 in reaped of the same property. Baja Raghuuafch Deb died subsequently and was succeeded by one Madan Mohan Dab who assumed the title of Raja Madhusudan Deb. Some time in 1917 the title of Madan Mohan Dab to Killa Patia was challenged by Acohhutananda Deb in O. S. No. 762 of 1917 in the Court of the Subordinate Judge of Cutback. Achhutananda lost the suit in the lower Court and filed an appeal (F. A. No. 1 of 1920) in the High Court. During the pendency of the appeal, Madan Mohan Deb died and the Secretary of State for India was substituted in his place. On 10 -3 -1922, however, the Secretary of State for India and Achhutananda compromised the litigation in consequence of which the estate was surrendered to Achhutananda who obtained possession in due course in the same year. Sometime in 1926 Bhaban instituted a mortgage suit (O. O. No. 51 of 1926) on the basis of the second mortgage bond dated 13 -8 1913 and impleaded Achhutananda (as the latter was in possession of the entire estate by virtue of his compromise with the Secretary of State of India) as the principal defendant. The suit was decreed on 23 -8 -1927. In 1939, however, the title of Achhutananda to Patia estate was challenged by one Krushna Chandra Deb in 0. S. No. 24 of 1930 which was decreed in his favour on 25 -11 -1933. During the pendency of this litigation, however, Killa Patia was sold on 20 -51931 in exeoution of the mortgage suit (o. S. No. 51 of 1926) of Bhaban Sahu and purchased by the Raja Bahadur of Kanika subject to the first mortgage dated 20.2 -1913. The said Raja Bahadur obtained delivery of possession of Killa Patia (excluding the palace and its appurtenances) on 4.9 -32. Consequently when Krushna Chandra Deb succeeded in his litigation against Achhutananda in O. S. No. 24 of 1930 he could not obtain possession of the entire estate but only of Patia palace and its appurtenances amounting to 2.44 acres of land. The said Raja Bahadur, apart from being in the possession of the entire estate as a purchaser of the equity of redemption in mortgage suit 0. S. No. 51 of 1926, also acquired further interest in the estate by virtue of two subsequent mortgages taken by him from Madan Mohan Dab as early as 1918 and 1919 and decrees obtained on the basis of those mortgages as early as 1927. In the present litigation, however, it is unnecessary to describe in detail the other interests obtained by the Raja Bahadur of Kanika in Patia estate.
(3.) ON 6 -2 -1935 the respondents instituted the mortgage suit under appeal (O. S. No. 9 of 35) on the basis of the first mortgage bond for Rs. 107,000 executed by Raja Raghunath Dab on 26 -2 -1913. They took care to implead as defendants (i) Krushna Chandra Deb who had succeeded in his litigation against Achhutananda in 1933 (O. S. No. 24 of 1930), (ii) the Raja Bahadur of kanika, (iii) the Raja of Madbupur who had obtained some interest in the mortgaged property by virtue of a transfer in his favour of the subsequent mortgage decrees obtained by the Raja Bahadur, and (iv) Achhutananda himself. Achhutananda and Raja of Madhpur did not contest the litigation and a preliminary decree fonts. 3,71, 833 -8 -0 was passed by the Additional Subordinate Judge of Cuttack on 6 -3 37. Against this preliminary decree an appeal was filed before the Patna High Court in F. A. No. 3 of 1938 by the Raja Bahadur of Kanika alone and it was dismissed on 28 11 -1941.;