SRIVASTAVA, J. - (1.) THIS is a plaintiffs appeal that arises out of a suit to recover Rs.17.800/ - by the enforcement of a sample mortgage bond executed on the 1st February 1933 by Ganga Prasad defendant No.1 in favour of firm Kirpa Nath Sri Nath which belonged to the plaintiffs Kirpa Nath and Sri Nath. The consideration of the mortgage was Rs.10,000/ - and the property mortgaged was a house situated in Mohalla Naughara in the city of Kanpur. The suit was filed on the 31st January 1946 and besides Ganga Prasad the mortgagor, the other persons impleaded in the suit; were Mst. Mahmooda Khatoon, Badri Das, Noor Elahi and Mohammad Rafiq who were alleged to be subsequent transferees of the property. It appears that Ganga Prasad was a partner of a firm Hardutt Rai Bilas Rai. His father and brothers were also partners of that firm. The creditors of that firm made an application to the Insolvency Court praying that the firm as well as its partners be adjudged insolvents. The application was allowed and an order adjudging Ganga Prasad and the other partners of the firm insolvents was passed on the 9th October 1944. Along with the order of adjudication no order appointing a receiver was passed. By a subsequent order dated the 31st July 1946 Sri P.K. Banerji, Official Receiver of Kanpur, was appointed receiver of the estate of the insolvents. Along with the other properties of the insolvents he took possession of the house that had been mortgaged with the plaintiffs also and subsequently sold it to Ganga Narain Maheshwari who has now been impleaded in the present appeal as respondent No.7. Though Ganga Prasad, the mortgagor, had been adjudged insolvent prior to the institution of the suit, when the suit was filed the plaintiffs did not implead the Insolvency Court as a defendant in the suit. When, however, Sri P.K. Banerji the Official Liquidator, was appointed receiver they made an application that he be impleaded as defendant No.6 in the suit. As a result the receiver was made a party to the suit. The suit was at one stage decreed ex parte but the ex parte decree was subsequently set aside and the suit was contested mainly by the defendant No.1 and the receiver defendant No.6. The defendant No.1 admitted the execution of the mortgage bond but denied that any consideration had passed in respect of it. The receiver defendant No.6 did not admit the execution and consideration of the bond as he had no knowledge about the transaction and said that the report he had received was that the bond was within consideration. He also pleaded limitation and the bar of Sec.69 of the Indian Partnership Act. He pleaded further that the suit was bad because permission from the Insolvency Court had not been obtained, that it was defective against the defendants Nos.1 to 5 in view of Secs.28 and 58 of the Insolvency Act and that as against the receiver it was bad because notice under Sec.80 C.P.C. had not been served upon him.
(2.) THE trial Court framed the following issues: - (1) Was the mortgage deed in suit properly executed and duly attested? What consideration, if any, did the defendant No.1 receive? (2) Is the suit barred by Sec.69 of the Partnership Act? (3) Is the suit barred by time as against the defendant No.1 as well as the defendant No.6? (4) Is the suit bad for want of permission before filing of the suit of the Insolvency Court? (5) Is the suit against the defendants Nos.1 to 5 nullity under Secs.28 and 58 of the Insolvency Act? (6) Is the suit against the defendant No.6 bad for want of notice under Sec.80 of the C.P.C.? (7) What is the effect, if any, of not arraying the official receiver before 27 -4 -48 as a defendant? (8) Did the house in suit belong solely to Ganga Prasad on 1 -2 -33 or did it belong to him jointly with others as asserted by the contesting defendants? If the latter, what is its effect? The findings it recorded were that the suit was not barred by Section 69 of the Partnership Act or by Section 28 or 58 of the Insolvency Act, that no notice under Sec.80 of the C.P.O was necessary, that the mortgaged property belonged solely to defendant No.1, that the execution of the mortgage deed was proved but the only consideration that was established as having been paid consisted of two items of Rs.3,078/2/ - and Rs.506/10/ -, the rest of the consideration had not been proved to have been paid, and that the suit was barred so far as the receiver was concerned by limitation. As a result of these findings the suit was dismissed.
(3.) THE plaintiffs have come up in appeal. During the pendency of the appeal Sri P.K. Banerji, the Official. Receiver, died and another official receiver was appointed. He was impleaded as respondent and is Sri Har Prasad Nigam. The property having been sold by the receiver to Sri Ganga Narain Maheshwari he too had been impleaded as a respondent in the appeal.;