The mortgage contract was found to be indivisible, and the plaintiffs were not entitled to partial redemption. However, the Court allowed a decree for re-conveyance covering the unexecuted mortgage-decree and the properties purchased by the assignee in execution.

JUDGMENT

Asutosh Mookerjee, J. - This is an appeal by the plaintiffs in a suit instituted by them for declaration, that a mortgage-decree is not fit for execution, for partial redemption by payment of proportionate shares of the mortgage dues and for incidental reliefs, The events which have led up to this litigation are not in controversy and may be briefly stated. On the 9th February 1:907 Rani Mrinalini, wife of Raja Narendra lal Khan of Narajole, obtained a consent decree in a mortgage suit against the plaintiffs. There were various proceedings in execution which need not be recited for our present purpose. On the 15th February 1915 Nagendra Bala Dasi, the second defendant in this suit, applied to the Execution Court to have her name substituted in the place of the decree-holder, on by allegation that she had taken an assignment of the decree on the 7th February 1915. On the 29th February 1915 the original decree-holder intimated to the Court that she had transferred the decree and had no objection to the grant of the application. The judgment-debtors took time to put in objections, but as they did not enter appearance on the day fixed, the name of the assignee was duly substituted and execution was directed to proceed at her instance. Four of the judgment-debtors, who were plaintiffs in the present litigation, subsequently applied to the Court to re-consider the matter, and their application was granted. Thereupon they lodged an objection to the effect that the applicant had not really taken an assignment of the decree, but that her husband, Babu Naba Kumar Hajra, who was the Pleader for the judgment-debtors in the execution case was the purchaser of the decree and had put forward his wife as the ostensible transferee. The Subordinate Judge then proceeded to determine the question, whether Nagendra Bala Dasi or Babu Naba Kumar Hajra had taken an assignment of the decree and came to the conclusion that the Pleader had purchased the decree with his own money. The Subordinate Judge also found that the assignment had been taken for Rs. 11,506 while a much larger sum was due under the decree.

2. The Subordinate Judge, however, held that as the Pleader stood in a fiduciary relation to his clients, the purchase of the decree by him operated in equity as a satisfaction of the decree and consequently a discharge of the judgment-debt. Nagendra Bala Dasi thereupon appealed to this Court and assailed the decision of the Subordinate Judge substantially on two grounds, namely, first, that the evidence did not establish that she was not the real purchaser of the decree, assuming that the question could be properly raised in execution proceedings, and, secondly, that the decree could not be treated as completely extinguished even if it should be found that her husband had made the purchase with his own money. Upon the first point, this Court held that as the Pleader was not and could not be a party to the execution proceedings, no question could be decided as between him and his wife as to who was the beneficial owner of the decree. Upon the second point, the Court held that even if it were assumed (though not decided) that the Pleader had taken an assignment of the decree, the decree could not be deemed as entirely extinguished and the judgment-debtors treated as fully discharged: Nagendra Bala DasSi v. Debendra Nath 44 Ind. Cas. 13 : 27 C.L.J. 388 : 22 C.W.N. 491. The Court thereuponset aside the order of the Subordinate Judge and declared that the assignee Nagendra Bala Dasi would be competent to proceed with the' execution of the decree, the execution proceeding to stand revived for that purpose. The Court however added a direction that no steps be taken in execution till the 1st January 1918, so that the judgment-debtors might have ample time to institute, if they should be so advised, a suit again the assignee of the decree and her husband with a view to obtain a transfer of the decree in their own favour, oh proof of the allegations