Judgement

BHAGWATI, J. :

This is an appeal against the judgment and decree of the High Court of Judicature at Calcutta reversing the order of the Third Subordinate Judge, Alipore dismissing the Respondents applications for re-restoration of certain immovable properties.

2. One Romesh Chandra Acharji Choudhury (deceased) predecessor-in-interest of the Appellants borrowed on the 16th August 1918, Rs. 1,60,000 and Rs. 73,000 from the predecessors-in-interest of Respondents under two deeds of mortgage. There being default in payment of the mortgage amounts a suit to realise the mortgage securities was filed on the 10th March 1926 in the Third Subordinate Judge s Court Alipore. A preliminary mortgage decree for Rs. 4,21,851-1-6 was passed on the 4th April 1929 and a decree absolute for sale was prossed on the 13th September 1929.

The mortgaged properties were put up for sale in execution proceedings in 1930 and the decreeholders purchased the properties at auction sales on the 29th February 1932 and the 23 rd April 1935 for an aggregate amount of Rs. 2,35,200. These sales were duly confirmed and the auction purchasers took delivery of possession of different times of property on different dates between the 25th June 1933 and the 9th March 1936. The decree-holders obtained on the 13th December 1937 a personal decree under Order 34, Rule 6 of the Civil Procedure Code for the balance due to them, viz. Rs. 3,30,903. This personal decree was also executed and some properties of the mortgagors were purchased by the decree-holders on the 8th August 1939 for Rs. 3,899 and delivery of posseasion of these properties was duly given to them on the 6th July 1940.

3. Kahitish Chandra Acharji Choudhury, since deceased, the predecessor-in-interest of the Appellants Nos. 1 to 3 and Jyotish Chandra Acharya Choudhury, the Appellant No. 4 sons of the mortgagor filed on the 9th December 1940 a petition under Section 36 of the Bengal Money Lenders Act (Act 10 of 1940) for reopening the mortgage decree and the personal decree. By an order dated the 25th August 1941 the learned subordinate Judge reopened the decrees and on the 10th May 1943 passed a new decree for a sum of Rs. 3,76,324-12-6. The said sum- was directed to be paid by the judgment-debtors to the decree-holders in fifteen equal annual instalments. He also directed the restoration of the properties purchased by the decree-holders.

4. The present Respondents preferred, on the 19th June 1943, an appeal to the High Court of Judicature at Calcutta and cross-objections were filed by the said Kshitish Chandra Acharji Choudhury and Appellant No. 4. By their judgment and decree dated the 29th June 1944 the High Court affirmed the decree of the Court below with some substaintial variations and passed a new decree in favour of the mortgagors. The mortgagees were ordered to put the mortgagors in possession of all the properties they had purchased in execution of the reopened decrees and render to them an account of the mesne profits of those properties from the 15th September 1941 till they restored or reliquished possession to the mortgagors of the collection papers of those properties.

The sum of Rs. 3,76,374-12-6 was declared to be due by the mortgagors to the mortgagees and the mortgagors were to pay the same in twenty equal annual instalments the first of such instalments to be paid on or before the first anniversary of the date on which the mortgagees restored or relinquished possession of all the properties purchased by them in execution to the mortgagors or of the date on which they delivered to the mortgagors the collection papers as therein mentioned, whichever date was later.

The mortgagors were to pay to the mortgagees the successive annual instalments on or before the same date of the succeeding years on which the first instalment became payable and they were also to pay the annual revenue of the aforesaid properties that would become payable after they were restored to possession kist by kist, as