Bose - (1.) -
(2.) THIS is a defendant's appeal in a suit for contribution brought by the son of a mortgagor against the co-mortgagors. The parties are related as below: JUDGEMENT_47_AIR(SC)_1952Image1.jpg The mortgagors were the plaintiff's father Tarak Lall and Tarak's two brothers Kedar and Naku. The mortgage was executed on the 12/06/1936, in favour of one Mst. Gyarsi for a consideration of Rs. 80,000.00 . For convenience I will call this the suit mortgage though this is not a suit on the mortgage. The mortgagee sued in the year 1938 and obtained a preliminary decree for sale on the 17th of February, 1939, for a sum of Rs. 89,485-12-9 plus costs. The decree was made final on the 22nd of December, 1989. In execution the mortgagee proceeded against the property of the plaintiff alone (as Tarak's son) and, during the pendency of the execution, assigned her rights in the decree to the Hooghly Flour Mills. The Mills continued the execution and on the 11th of March, 1943, the claim was satisfied in this way.
(3.) AN order of the court was obtained sanctioning sale of a part of the mortgaged property, 20 Round Tank Lane (which belonged exclusively to the plaintiff), to the decree-holder for a sum of Rs. 1,50,000.00 . It was directed that the consideration should first be applied in payment of the claim and costs and that the decree-holder should execute a reconveyance of the rest of the mortgaged properties in favour of the mortgagors. The sanction of the court was necessary because the judgment-debtor Hari Lall (present plaintiff) was a minor. This was done and 20, Round Tank Lane, was conveyed by the present plaintiff to the Hooghly Flour Mills on the 18th of March, 1943. Out of the consideration a sum of Rs. 97,116-11-0 was paid to the Mills in lull satisfaction of the claim and costs then outstanding. The Mills executed a reconveyance of the rest of the properties to the mortgagors in release of the mortgage on the same day. In addition to this Rs. 97, 116-11-0, further sums of Rs. 14,400.00 and Rs. 8,100.00 had also been paid before the dates of these transactions. These sums were paid by a Receiver who had been appointed by the court pendente lite. These sums came out of the rents which the Receiver obtained from the plaintiff's property, 20 Round Tank Lane. ;