LAHIRI, J. - (1.) THE appellant Amulya Ratan Mukherjee instituted the suit out of which this appeal arises for a declaration that the ex parte decree passed in Title Suit No. 52 of 1940 of the Court of the fourth Subordinate Judge, 24 -Par -ganaa and the execution proceedings arising out of it and the auction sale held therein are not binding upon the plaintiff appellant and that the title of the plaintiff has not been affected by the said decree and sale. The subject -matter of the dispute is the pucca ancestral dwelling house of the plaintiff standing on 12 cottah and 13 chattacks of land in mouza Kantalpara police station Naihati. The case of the plaintiff is that his father Lakshmi Narayan Mukherjee borrowed a total sum of Rs. 2400 on the basis of three mortgage bonds on various dates between 1934 and 1937 from defendant 2, Kanak Nalini Ghose. On 9th August 1939, defendant 2 instituted Title Suit No. 52 of 1940 for sale of the mortgage premises for the realisation of her dues from Lakshmi Narayan Mukherjee. In the month of August 1939 Lakshmi Narayan left his house in a fit of insanity and never returned and he met with his death on the footpath of Hari Ghose Street in Calcutta, on 6th February 1942. On account of the disordered condition of the brain of Lakshmi Narayan, the mortgage suit could not be properly defended and although the mortgagee Kanak Nalini was aware of the defect of Lakshmi Narayan, she took no steps to have a guardian ad litem appointed, obtained an ex parte decree and in execution thereof brought the mortgaged property to auction sale at which it was purchased by defendant 1, Akhil Chandra Ghose, on 10th January 1942 for a sum of Rs. 5500. This suit was instituted by the plaintiff on 4th March 1942 and it appears that defendant 3, Gour Mohan Kundu, purchased the house from defendant 1 for the same amount by a registered conveyance dated 22nd September 1942 and he was thereafter added as a party to the suit by an order dated 8th January 1943.
(2.) THE suit was contested by the auction purchaser defendant 1 and also by the purchaser pendente lift defendant 3 principally on the ground that the plea of Lakshmi Narayan's insanity was a mere cloak to give an air of plausibility to the false claim of the plaintiff; that the story of Lakshmi Narayan's death was false, that Lakshmi Narayan was still alive and that Lakshmi Narayan left his house not in a fit of insanity as alleged by the plaintiff but on account of the maltreatment at the hands of the plaintiff and began to live with a concubine. Defendant 1 also raised some pleas in bar, namely that the court -fee paid by the plaintiff was not sufficient in law, that the suit was barred by estoppel and that the suit was barred under Section 42, Specific Relief Act. All the preliminary issues raised by the defendant were decided by the learned Subordinate Judge against the plaintiff. On the question of court -fees, it was held that the plaintiff having succeeded to the rights and liabilities of his father, should have prayed for setting aside of the ex parte decree and should have paid ad valorem court -fees on the value of the decree. As to the bar under Section 42, Specific Relief Act, it was held that it was incumbent on the plaintiff to ask for further relief for setting aside of the ex parte decree and as that was not done, the suit was not maintainable under that section. To appreciate the case of estoppel, it is necessary to recite certain facts. It appears that during the pendency of the mortgage suit the plaintiff, Amulya Ratan, filed an application on 9th December 1940 alleging that his father Lakshmi Narayan Mukherjee became completely insane in or about the first week of July 1939 and had not been heard of since then and in these circumstances it was necessary to have a guardian ad litem appointed. This application is Ex. E. On 15th March 1941 when this application was taken up for hearing, the plaintiff Amulya Ratan was found absent on call and the Court proceeded with the trial without making any appointment of guardian ad litem upon the view that Lakshmi Narayan was not insane. It is said that the failure of the plaintiff to prosecute the application filed on 9th December 1940 brings into operation the principle of estoppel and the plaintiff is precluded by law from challenging the decree that was passed against his father.
(3.) ON the merits of the case, the learned Subordinate Judge has held that though Lakshmi Narayan died on the streets of Calcutta on or about the date alleged by the plaintiff the evidence adduced by the plaintiff was too meagre and insufficient for a clear finding of insanity and upon that evidence one could not come to a clear conclusion that Lakshmi Narayan became insane in July or August 1939.;