Recent decisions favored the respondents' contention that a mortgagee can bring a suit for possession against the holder of the equity of redemption who had been left out in the mortgage suit, subject to the defendant's right of redemption.

JUDGMENT

Mallik, J. - This appeal arises out of a suit for declaration of title to some lands and for recovery of possession of the same The property originally belonged to one Kamaladdi Mandal and his brothers. About 1888 one of the brothers and the heirs of the other brothers mortgaged the property to one Surjyakanta Bhattacharjya, the maternal grandfather of the plaintiffs. Surjyakanta, in October 1888, executed a will, by which he devised his properties to his daughter Gopendrabala Debee and died. Gopendrabala, in 1889, took probate of the will. In June 1891 the mortgagors executed an instalment mortgage bond in favour of Gopendrabala. In the year 1895 a rent suit was brought against the mortgagors for the rent of the lands, a decree was obtained and, when the property was put up to sale in execution of the decree, one Ahmaddi purchased one-half share of the holding, thereby acquiring the right, title, and interest of the mortgagors of the property and becoming the holder of the equity of redemption in respect of one-half share of the property. In the year 1901 the plaintiffs who, as I have said before, are the sons of Gopendrabala, the daughter of Surjyakanta, instituted a suit upon the mortgage bond of 1891. In this suit however Ahmaddi was not impleaded as a party.

2. The plaintiff's obtained a mortgage decree on 26th June 1902, and, in execution of that decree, they purchased the properties on 15th June 1904 and obtained symbolical possession. In 1902 the landlord had obtained a rent decree against Ahmaddi and in execution of that decree the property was put up to sale and defendant 11 purchased the right, title and interest of Ahmaddi on 11th May 1903. Thereafter, on 15th February 1916, the plaintiffs instituted a suit for possession of the property in question on the allegation that defendant 11 who had been in possession was resisting them from obtaining possession thereof. The defence 'inter alia was that the plaintiffs were not the heirs of Surjyakanta, that the mortgage was not a valid mortgage and that the plaintiffs could have no relief against the contesting defendant, namely, defendant 11, who was the purchaser of the equity of redemption, the person whose interest the defendant had purchased not having been impleaded in the mortgage suit. This defence was negatived by both the Courts below and the Courts below have given a decree to the plaintiffs, subject to the contesting defendant's right of redemption. Defendants 11/1 and 11/2, who are the heirs of the contesting defendant 11, have appealed to this Court.

3. The facts relevant for the purpose of the present appeal that would emerge from what I have stated above are these: (1) the plaintiffs purchased the mortgaged property on 15th June 1904 in execution of their mortgage decree dated 26th June 1902; (2) defendant 11 had purchased a portion of the interest of the mortgagors and thereby had become the owner of a part of the equity of redemption on 11th May 1903; and (3) the plaintiffs in their mortgage suit had made the original mortgagors parties, but left out Ahmaddi who had acquired the right of redemption in respect of a part of the properties and whose right was subsequently purchased by defendant 11. The question is whether under these circumstances the plaintiffs' suit for possession against defendant 11 was maintainable or not. On behalf of the appellants who, as I have stated above, are the sons of the contesting defendant 11, the contention was that the suit could not be maintained, whereas on the side of the respondents it was urged that it was maintainable.

4. Both parties have, cited a number of decisions in respect of their respective contentions. The principal decisions relied on by the appellants are: Grish Chunder Mondul v. Iswar Chunder Rai 4 CWN 452, Habibullah v. Jugdeo Singh (1901) 6 CLJ 609, Aghore Nath Bannerjee v. Deb Narain Guin 11C WN 314, Kristopada Roy and Others Vs. Chaitanya Charan Mondal and Others, AIR 1923 Cal 274 ; Hargu Lal