B.N.Banerjee, J. - (1.) Ganesh Chandra Chakravarty, the appellant in this appeal, is a subsequent mortgagee decree-holder. Kalna Town Credit Co-operative Bank (herein after referred to as the 'Bank') was a prior mortgagee of the self-same property, which was subsequently mortgaged to Ganesh Chandra Chakravarty. It appears that the Bank instituted a suit in enforcement of the mortgage in its favour but did not make Ganesh, the subsequent mortgagee, a party defendant in that suit. The Bank obtained a decree and in execution of the decree itself auction purchased the mortgaged property,
(2.) In the suit filed by Ganesh, in enforcement of the mortgage in his favour, the mortgagors and the prior mortgagee, the Bank, were all made defendent In the aforesaid suit a sum of Rs. 1800/-was found due and owing to Ganesh by way of principal and interest and there was a preliminary decree for sale passed in favour of Ganesh with costs. The Bank preferred an appeal, being Title Appeal No. 160 of 1951, against the decree. The appeal was dismissed on 6-8-1954, and the preliminary decree for sale was affirmed with costs. I quote below the material portion from the decree passed in appeal; "It is ordered that the appeal be and the same is hereby dismissed on contest with costs to the plaintiff-respondent No. 1 and ex parte without costs against the rest. The judgment and the decree of the learned Munsif are hereby affirmed. The costs of this appeal, as detailed below, amounting to Rs. 137-14-3p (Rupees one hundred thirty seven, annas fourteen and pies three only) are to be paid by the appellants to the respondent No. 1. The costs of the original suit amounting to Rs. 309-12-9 pies (Rupees three hundred nine, annas twelve and pies nine) are to be paid by the defendants 1. 2, 3, 6 and 7 to the plaintiff." The defendant No. 2 referred to above was the Bank.
(3.) After the preliminary decree had been affirmed in appeal there was a final decree passed, on 6-5-1954. The mortgage security was sold in enforcement of the final decree but the sum of money realised was not sufficient to satisfy the costs.;