SAILENDRA NARAYAN BHANJ DEO Vs. JAGAT KISHORE PRASAD NARAYAN SINGH

JUDGEMENT

(1.) These appeals, First Appeal No. 429 of 1951 and Miscellaneous Appeal No. 226 of 1950, were heard together as they arise out of the same transaction and involve common facts, and this judgment will govern both. It will be more convenient to deal with them separately.

(2.) F. A. 429/51. -- The First Appeal has been brought from the judgment of the Additional Subordinate Judge, dated 22nd August, 1951, by which he decreed the plaintiff's suit for accounts. The facts may be shortly put as follows. The dispute relates to the estate of late Chandreshwar Prasad Narayan Singh, the proprietor of Maksudpur Raj. On 17-2-1924 he executed in favour of Raja Bahadur Sir Rajendra Narayan Bhanj Deo of Kanika, whose son Raja Sailendra Narayan Bhanj Deo is the defendant in the suit (hereinafter referred to as the Raja of Kanika), a simple mortgage hypothecating the properties mentioned in Schedule A to the plaint to secure repayment of Rs. 4,00,000. On 1-6-1935 the Raja of Kanika instituted Mortgage Suit No. 27 of 1935 in the Court of the 3rd Subordinate Judge, Patna, to enforce the said mortgage and on 22nd April, 1936, obtained a preliminary decree for Rs 6,00,000 which decree was made final on 16-3-1937. In 1938 he levied execution of the decree in Execution Case No. 13 of 1938, and the Court ordered execution by appointing a Receiver as provided in Section 51 of the Civil Procedure Code. The Receiver appointed by the Court was no other than the judgment-debtor himself, namely, Chandreshwar Prasad Narayan Singh. This appointment was made on 20-12-1938, and he worked as a Receiver till 4-5-1940 when he was succeeded by Mr. Ramanugrah Prasad, Advocate, as a Receiver.

(3.) The mortgaged property constituted the mokarrari tenure of the mortgagor who had undertaken under the mortgage the liability to pay to the superior landlord the rent of the tenure which came to Rs. 21,330-3-6 including cess. The proprietor of this tenure was Rani Bhuneshwari Kuer, the Rani of Amawan and the owner of seven annas Tikari Raj. She had mortgaged her proprietary interest usufructuarily to the Maharaja of Darbhanga. When the rent of the tenure in question fell into arrears the Maharaja of Darbhanga as a mortgagee-proprietor started certificate proceedings for realisation of the arrears and obtained in 1940 a certificate for the arrear rents of the tenure amounting to Rs. 83,267. In execution of the certificate the Darbhanga Raj brought the tenure to sale and in order to protect his interest as a mortgagee of the tenure the Raja of Kanika deposited the entire certificate dues in Court on 28th September, 1940, in accordance with the provisions of Section 171 of the Bihar Tenancy Act and obtained delivery of possession on 23-11-1940 in respect of the villages mortgaged to him as described in Schedule A to the plaint and the other villages which were out- side the mortgage as mentioned In Schedule B to the plaint.