(1.) THE added defendant petitions for the suit to be dismissed on the grounds that the plaint relating thereto discloses no cause of action and the suit is barred by law. In effect, the parties quibble over their rights as to large tracts of valuable land in commercial Howrah.

(2.) THE narration of events has to begin with a reference to Suit No. 85 of 1984 wherein the plaintiffs claim in such suit was discharged upon satisfaction in that regard being recorded by an order of November 27, 1991. The plaintiffs in the 1984 suit carried on business under the name and style of "himalayan Trade Links" (hereinafter referred to as Himalayan). Himalayan had given a loan to Katihar Jute Mills Limited, the first defendant in the 1984 suit (hereinafter referred to as Katihar). Morgan Walker and Company Limited, the second defendant in the 1984 suit (hereinafter referred to as Morgan), had guaranteed repayment of the loan obtained by Katihar from Himalayan. Himalayan sued both the principal debtor and the guarantor in the 1984 suit.

(3.) MORGAN gave the guarantee on Katihars behalf against a counter claim furnished by Pratap Properties Limited, the first defendant in this suit (hereinafter referred to as Pratap), and an equitable mortgage created by Pratap of some of its properties by deposit of title deeds relating thereto with Morgan. Shortly upon Himalayan seeking to press its claim against Katihar and Morgan, morgan sought to enforce the mortgage created by Pratap by instituting Title suit No. 12 of 1986 in the Court of the Second Civil Judge, Senior Division, at howrah with the primary relief claimed being one for a decree for Rs. 70 lakh odd, about the amount of the claim made by Himalayan in the 1984 suit. It is the Howrah suit which has been transferred to this Court and in which the added defendants application has now been made, inter alia, for dismissal of the action.

(4.) THE substituted plaintiff in this suit, Salkia Estate Development pvt. Limited (hereinafter referred to as Salkia or the substituted plaintiff), entered into an agreement with Morgan for discharging Morgans debt to Himalayan. Salkia made an application in the other suit in november, 1991 for it to be recorded that the decretal debt of Himalayan had beenfully and finally settled and satisfied on the terms and conditions mentioned at paragraph 7 of Salkias application. Such terms are of some relevance but it is first the order that was made on Salkias application in the 1984 suit that is to be seen. The order of november 27, 1991 records Salkias assertion that it had entered into an agreement with Morgan by which Salkia had agreed to acquire Morgans liability to Himalayan in consideration for assignment of Morgans rights against Pratap on the counter guarantee. The order further records that Himalayan had agreed to accept Rs. 20 lakh in full and final settlement of its claim under the decree against the defendants in the suit and that Salkia had paid such sum of Rs. 20 lakh to Himalayan.

(5.) BY the time that Salkia sought to step into Morgans shoes and discharge Himalayans debt on account of Morgans guarantee furnished for the benefit of Katihar, Katihar had gone into liquidation and the 1984 suit proceeded, with leave under Section 446 of the Companies Act, against the official liquidator representing Katihar.

(6.) BY the application made by Salkia in November, 1991, it required the Court to record the satisfaction of the decree of September 2, 1988 passed in the 1984 suit and for Salkia to be assigned whatever rights Morgan had to recover the amount from the official liquidator. In addition, Salkia sought to have certain other terms recorded, affecting Pratap. The order of November 27, 1991 noticed that Morgan had filed a suit against Pratap in Howrah, but declined to record the terms involving Pratap that Salkia desired should receive the imprimatur of Court, on the ground that no notice had been given to Pratap. It is best that the relevant