Seuli Choudhury v. Maydha Baijnath — 1969 DIGILAW 306 (CAL)

JUDGMENT Bagchi, J. 1. THIS is an appeal against a judgment and the preliminary decree, passed by the learned Subordinate Judge, Ninth Court at Alipore in a mortgage Suit being Title Suit No. 99 of 1966 of that Court. The appellant is the defendant No. 3 Seuli Choudhury. The plaintiff respondent, Maydha Rajnath lent and advanced to the defendant No. 1 Madhusudan Kundu and his alleged partners K. K. Wadia and F. R. Bhoori Rs. 25,000/- and 15,000/- on 1st of September, 1953 and 10th of September, 1953 respectively for the purpose of running their cinema business then casted on in a premises under the name and style of 'Kartick Cinema' on their agreeing for creating a mortgage security in respect of the properties described in the schedule to the plaint. The mortgage deed was drawn up and the defendant No. 1, Madhusudan and his two other partners executed the said deed of 1.9.53. but failed to register the same. Then a dispute arose between the defendant No. 1 and his two partners Wadia and Bhoori. The defendant No. 1 filed a suit against Wadia and Bhoori in the Original Civil Jurisdiction of this Court claiming inter alia that the so-called partnership deed amongst them was void and inoperative. Wadia and Bhoori filed a counter suit for a declaration of their partnership with the defendant No. 1 Madhusudan and for dissolution of the said partnership. The suit was filed also in the Original Civil Jurisdiction of this Court. The suit of the defendant No. 1 Madhusudan was decreed and in that suit order was passed declaring the said deed of partnership void. In the suit of Wadia and Bhoori against the defendant No. 1 the High Court ordered on 13.1.55 that the defendant No. 1 that means Madhusudan alone would execute a mortgage in respect of the cinema premises now the subject matter of the mortgage suit in favour of the plaintiff respondent for securing the loan of Rs. 40,000/- advanced to the defendant No. 1 and his two other partners with interest at the rate other cent per annum until payment and all costs and charges and expenses of the plaintiff, the present respondent, in connection with the execution of that mortgage bond. Defendant No. 1 Madhusudan changed the name of the cinema from Kartick to Rukmini and the cinema now goes by the name of 'Rukmini Talkies'. Defendant No. 1 Madhusudan changed the name of the cinema from Kartick to Rukmini and the cinema now goes by the name of 'Rukmini Talkies'. The defendant No. 1 Madhusudan failed to execute the mortgage deed in favour of the plaintiff in terms of the order. The defendant No. 1 sold the cinema house with its equipments etc. subject to the charge in favour of the plaintiff for Rs. 40,000/- only with interest thereon, to the defendant No. Sm. Jyotsna Mallick. As the defendant No. 1 failed and neglected to execute the mortgage deed in favour of the plaintiff or to pay the dues of the plaintiff in spite of demands, the plaintiff filed a suit against the defendants Nos. 1 and 2 Madhusudan and Sm. Jyotsna Mallick in the Original Civil Jurisdiction of this High Court being Suit No. 1161 of 1958 for specific performance of the contract to execute the mortgage with a direction upon the defendant No. 2 to join in the said mortgage was required. The suit No. 1161 of 1958 was decreed against the defendant Nos. 1 and 2 Madhusudan and Sm. Jyotsna Mallick. Both of them failed and neglected to execute the mortgage deed in terms of the decree. The plaintiff-respondent in this appeal applied before the High Court for execution of the said decree for specific performance of the contract as against defendant Nos. 1 and 2. During the pendency of the said execution proceedings, the defendant No. 2 sold her right, title and interest in the cinema house with the equipments, being the property now under mortgage, to the defendant No. 3 Sm. Seuli Choudhury, the present appellant. The plaintiff respondent in the execution proceeding arising out of the decree in the suit No. 1161 of 1958 prayed for and obtained an order from the High Court on 16th March, 1965 being that the plaintiff would be at liberty to proceed against the defendant No. 3 also for execution of the mortgage deed pursuant to the decree dated 13th September, 1961 passed in the suit No. 1161 of 1958 in favour of the plaintiff. It was directed in the said order that in default of the defendant No. 2's and Nos. 3's executing the said mortgage deed, the Registrar of the Original Side of the High Court would execute the said mortgage deed and present the same for registration. It was directed in the said order that in default of the defendant No. 2's and Nos. 3's executing the said mortgage deed, the Registrar of the Original Side of the High Court would execute the said mortgage deed and present the same for registration. The defendant Nos, 2 and 3 both failed to execute the mortgage bond. So the mortgage bond was executed by the defendant No. 1 personally and by Mr. Saral Kumar Banerjee, the then Registrar of the Original Side of the Calcutta High Court on behalf of the defendant Nos 2 and 3 jointly on 29th September, 1965 in favour of the plaintiff for a total sum of Rs. 40,000/- lent and advanced by the plaintiff together with Interest thereon from the respective dates of payment until satisfaction at the rate of 8 per cent per annum with such other costs and charges and expenses as set forth in the said deed : The mortgage decree in respect of the property is covered by the deed registered on the 30th September, 1965 : The amount dues, under the mortgage bond, on account of principal lent was at Rs. 40,000/- and interest upto the date of the said loan less the amount relinquished, was at Rs. 40.000/-; The plaintiff thus claimed on account of principal and interest Rs. 80,000/- due to the mortgage bond from the defendants, 1, 2 and 3 on the basis of the mortgage bond referred to above : He prayed for a preliminary mortgage decree for sale for the amount of the principal and interest at the mortgage rate upto the date of sale and further interest at the bond rate until realisation : The plaintiff further prayed that if within the period fixed by the preliminary decree the defendant failed to pay up the mortgage dues under the preliminary decree a final decree of mortgage for sale should be passed : The plaintiff further prayed that in case the sale of the mortgage property was found insufficient to pay the decretal dues and cost due to the plaintiff, the plaintiff should be given liberty to apply for a decree for the balance of the dues against the defendant personally : 2. THE suit was contested by the defendant No. 3, the appellant Seuli Choudhri, she raised various contentions such as that the mortgage bond had not been legally executed and attested and no consideration passed as alleged in the bond : She denied the transactions of loans ay alleged in the plaint in between the plaintiff and defendant No, 1 and his partners and of the decree mentioned in the plaint: THE decree obtained by the plaintiff in suit No. 1-1161 of 1958 was challenged by the defendant No. 3, the appellants as fraudulent and collusive : THE defendant No, 3, further contended in the written statement that she was a bona fide purchaser for value without notice and that the decree in Suit No. 1161 of 1958 being in respect of a property lying and situated beyond the local limits of the jurisdiction of the Original Side of the Calcutta High Court as a nullity, and that the mortgage bond executed in pursuance of the decree in Suit No. 1161 of 1.955 was invalid and unenforceable : She denied in the written statement that she was served with any notice in the execution proceedings arising out of the decree in Suit No. 1161 of 1958 at any time previous to the suit since she had purchased the suit property from the defendant No. 2 by a sale deed dated 3rd October, 1961 : She further contended in the written statement that the order passed on 16th March, 1965 in suit Mo. 1161 of 1958 by the High Court was invalid and inoperative against the defendant No. 3 since it was passed without any notice to her : In that trend of contentions she asserted in the written statement that the mortgage bond executed on her behalf by the Registrar of the Original Side of the Court with the terms and covenants therein were not her terms and covenants, and as such, the mortgage bond and the transactions there under were not binding on her. She challenged the rate of interest as being excessive, harsh and unconscionable. She contended that as the plaintiff had no effective money lending licence under the provisions of the Bengal Money Lenders Act the suit could not have proceeded. She challenged the rate of interest as being excessive, harsh and unconscionable. She contended that as the plaintiff had no effective money lending licence under the provisions of the Bengal Money Lenders Act the suit could not have proceeded. She, therefore, prayed for dismissal of the suit with costs; The defendant No. 2 filed a separate written statement and raised several pleas in defence and prayed for dismissal of the suit, but ultimately did not appear to contest the suit. Only the defendant No. 3 contested the suit and the following issues were framed in the suit :- "1. Is the suit bad for non joinder of parties and cause of action ? 2. Is the alleged decree in Suit No. 1161 of 1958 collusive fraudulent and void and was it brought into being by the plaintiff, in collusion with defendant No. 17. 3. Is the alleged mortgage bond is (in ?) pursuance of the decree in Suit No. 1161 of 1958 invalid and unenforceable against this defendant, as alleged. 4. Is the plaintiff entitled to a preliminary decree for mortgage against this defendant No. 3 for the amount, claimed ? 5. To what relief if any, is the plaintiff entitled ? 6 Is the suit barred by limitation ? 7. Is the suit maintainable ? 8. Is the mortgage bond void. On the issue No.1 the learned Subordinate Judge found in favour of the plaintiff ? Issues Nos. 2, 3, 6, 7 and 8 were taken up by the Judge for consideration all at a time : The learned Subordinate Judge held that the Suit No. 1161 of 1958 was not collusive and fraudulent and found that it was not brought into being by the plaintiff in collusion with the defendant No. 1. The mortgage bond (Ext. d) as held by the learned Subordinate Judge was a valid and enforceable document against the defendants and that it was not void as alleged : The learned Judge also hold that the suit was not barred by limitation. The learned Judge held that without any effective money lender's licence the suit could well proceed to the decree since the plaintiff was not carrying on a business of money lending within the meaning of the expression money lending business in Bengal Money Lenders Act. On issue Nos. The learned Judge held that without any effective money lender's licence the suit could well proceed to the decree since the plaintiff was not carrying on a business of money lending within the meaning of the expression money lending business in Bengal Money Lenders Act. On issue Nos. 4 and 5 the learned Judge held that the plaintiff was entitled to a preliminary decree for mortgage against the defendants including the defendant No. 3 for the amount claimed. The learned Judge concluded that the plaintiff was entitled to the preliminary decree, as prayed for on the mortgage bond against the three defendants for the amount claimed and that the suit was maintainable against the three defendants since the mortgage bond was a valid document enforceable against all the three defendants : 3. THE learned Judge, accordingly, decreed the mortgage suit in a preliminary form for sale, on contest with costs against defendant No. 3 and Exparte against the defendant Nos. 1 and 2 and allowed post decretal interest at 6 per cent per annum on the decretal dues as claimed in the plaint till realisation. He fixed under the decree one month's time for payment of the decretal dues and cost by the defendants and directed that in default of payment within the period fixed, the plaintiff would be at liberty to apply for a final decree for sale of the mortgage property for realisation of the decretal dues and cost : 4. BEING aggrieved by the judgment and decree passed by the learned Subordinate Judge the defendant No. 3 has come up with this appeal which was opposed by the plaintiff respondent : On behalf of the defendant No. 3, the appellant, Mr, Guha, the learned Advocate, raised three points in his argument: The findings of the learned Subordinate Judge on the issue of facts were not controverted in his argument by Mr. Guha except the finding as to the service of notice in the execution proceeding arising out of the suit No. 1161 of 1958 decreed by the Original Side of this court : on the question of notice the learned Subordinate Judge at page- 101 of the judgment, as printed in the paper book, examined the contention of the defendant No. 3 as to the question of service of notice upon her either through the court or by the solicitor in the execution proceedings arising out of the decree in suit no. 1161 of 1958 of the Original Side of this Hon'ble High Court. After discussing both the oral evidence adduced by the husband of the defendant No. 3, D.W, 1, and documentary evidence such as letters being notices sent through registered post to the address of the defendant No. 3 being her cinema premises the learned judge observed in his judgment at page 103 of the paper book. "I am therefore of opinion that the evidence of P.W. 1 corroborated by the A. D. receipts (exhibits 3 to 3(b)) satisfactorily prove that the letters or notices exhibits 1(a) to 1(d) had been duly served upon the defendant No. 3. That the defendant No. 3, in spite of the receipt of the said letters and notices, did not take any steps in the proceedings before the Hon'ble High Court, which, ultimately, terminated in the execution of the mortgage bond (exhibit 4) which was executed by the defendant No. 1. personally, and was executed by Sri Saral Kumar Banerjee, Registrar of the High Court at Calcutta in its Original Side, Civil Jurisdiction, on behalf of the defendant No. 2 and defendant No. 3. As the defendant No. 3 did not appear in the proceeding before the Hon'ble High Court in the Suit No. 1161 of 1958 the mortgage deed (exhibit 4) was executed on her behalf by the aforesaid Registrar on 29.9.65. The defendant No. 3, on whose behalf, the mortgage deed has been executed, is bound by the terms of the said deed and as such the plaintiff is entitled to enforce the charge on the said mortgage". 5. WE have examined the evidence of D.W. 1. The defendant No. 3, on whose behalf, the mortgage deed has been executed, is bound by the terms of the said deed and as such the plaintiff is entitled to enforce the charge on the said mortgage". 5. WE have examined the evidence of D.W. 1. Benoy Krishna Das Choudhury, he is a lawyer and member of the Parliament and an inhabitant of Cooch Behar : The defendant No. 3 did not hear the witness box to say that the notices had not been served upon the either through court or by solicitor : The D.W. 1 said "she (meaning his wife) defendant No. 3 did not receive any notice before or after". So the best evidence that could be ovailed of has been withheld by the defendant No. 3, the appellant. No explanation was offered as to why she had not either examined herself in court or had not applied for her examination on commission to deny the services upon her. It will appear from the evidence of D.W. 1 that the defendant No. 3 used to reside at the relevant time at three places, Calcutta, Cooch Behar and Delhi and Cooch Behar was her husband's normal place of residence : In May 1964, as D.W. 1 said, the defendant No. 3, the appellant, was in Cooch Behar and that he never resided at the Cinema House. The Cinema House is in Titagarh and belongs to her where she was carrying on the business of running the cinema house during the relevant time when exhibits 3, 3 (a) and 3 (b), being the acknowledgment receipts of the three notices, were signed by one Haque for and on behalf of the addressee of the notices the defendant No. 3. The notices were served through registered post with acknowledgment due addressed to the defendant No. 3 the appellant with her correct name and address at the cinema house in Titagarh, the place where she, at the relevant time, had been carrying on her business although her permanent residence at that time might have been at Cooch Behar. The contention of the defendant-appellant was that the person who signed as Haque in the acknowledgment receipts, exhibits, 3, 3 (a) and 3(b) was not connected with the cinema business and that the signature on the exhibits 3, 3(a) and 3(b) was not the defendant No. 3. The contention of the defendant-appellant was that the person who signed as Haque in the acknowledgment receipts, exhibits, 3, 3 (a) and 3(b) was not connected with the cinema business and that the signature on the exhibits 3, 3(a) and 3(b) was not the defendant No. 3. This denial was to have been given not by the D.W. 1 but by the defendant No. 3, herself. The D.W. 1 the husband of the defendant No. 3, nowhere said that he was looking after the business of the defendant No. 3 at Titagarh : If somebody personating as the defendant No. 3 signed in the acknowledgment receipts it was for the defendant No. 3 to plead and assert that the signatory in the three acknowledgment receipts was an imposter and the signature of one, purporting to be of Haque, was a forged signature : This was not done. The business of the cinema is looked after both by defendant No. 3 the appellant and her husband at times. D.W. 2 Prabir Dhar, who is the Manager of Rukmini Talkies came to say that before the present mortgage suit no notice was served on defendant No. 3 addressed to her at the cinema hall address either from the High Court: or from the Solicitor, and that there was no Muslim employee in his cinema hall throughout the year 1965. Looking into the initials on the acknowledgment receipts, exhibits 3 and 3 (b) the D.W. 2 could not identify whose initials were there; but still he said, "these do not bear signature of any of our employees". He came to deny and therefore, he while failing to identify the initials, could be bold enough to say that the initials did not emanate from the hand of any one of the cinema employees. The summons on the defendant No. 3 the appellant in the mortgage suit was served at her address at the cinema hall and was received by one Purna Bahadur, the darwan of the cinema. The letters according to the D.W. 2 addressed to the defendant No. 3 at her address at the cinema hall were sent to her where she, was at that time actually residing. The D. W. 2 said that he knew the initials of each of the employees of the cinema. The letters according to the D.W. 2 addressed to the defendant No. 3 at her address at the cinema hall were sent to her where she, was at that time actually residing. The D. W. 2 said that he knew the initials of each of the employees of the cinema. Looking at exhibit 3 he could not say whose signature that document bore nor could he say whose initials were there in exhibits 3(a) and 3(b). The defendant No. 3 the appellant, as we have already observed,, never came before the court to say that she had not received the notices. WE find from the evidence that Titagarh, where the cinema business is run by the defendant No. 3, the appellant in her place of business where she and her husband often go to manage such business and as such the premises at which the cinema house is situated at Titagarh is the ordinary place of business of the appellant defendant No. 3. The notices had been properly directed and posted under registered post with acknowledgment due to the address of the appellant-defendant No. 3 being at Titagarh where the cinema house is located. So the acknowledgment due in regard to three notices came back to the sender. So the notices that had been proved properly directed and posted per registered post are presumed to have reached the defendant No. 3, the appellant, to whom those were directed, in the ordinary course of postal business. Contrary to this should have been pleaded and proved by the defendant No. 3 herself which she did not as me have already observed. Even if the signatures in the acknowledgment receipt of the registered notices had been subscribed on behalf of the defendant No. 3, the appellant, by somebody who was not proved to have had any authority from the defendant No. 3 to receive the notices, it would be no evidence that the notices did not reach tie addressee (1) Harihar Banerji and ors. v. Ramsashi Roy and ors., Law Reports XLV Indian Appeals Page 222). v. Ramsashi Roy and ors., Law Reports XLV Indian Appeals Page 222). Therefore, we hold agreeing with the learned Subordinate Judge that the notices had reached the defendant No, 3, the appellant in the execution proceedings arising out of the decree In Suit No. 1161 of 1958 and that after receipt of the notices the defendant No. 5 did not come and challenged either the decree or the proceedings in execution. A decree for specific performance of a contract here being the contract of executing a mortgage bond is as such in favour of the defendant and against the plaintiff as it is in favour of the plaintiff and against the defendant. Even the defendant can enforce his right under it by execution proceedings particularly when the decree provides that the agreement to be "carried into execution" even his Lordship Sir Rankin, the Chief Justice observed through obiter that the defendant under a suit for specific performance is a decree- holder within the meaning of section 2 of the Code of Civil Procedure and as such can apply for execution of the decree (2) Heramba Chandra Maitra v. Jyotish Chandra Sinha and ors. 36 CWN 172. Therefore, the defendant-appellant is in view of the decree passed and the order made in the execution proceedings is bound by the result of the execution proceedings in which under the orders of the Court the defendant No. 1 and the Registrar of the Original Side of the High Court for and on behalf of the defendants Nos. 2 and 3 executed the impugned mortgage deed in the execution proceedings arising out of the decree for specific performance of the contract to mortgage in Suit No. 1161 of 1958 and the defendant appellant is bound by the terms and condition of the mortgage bond having had been executed by her along with the other joint debtors. 6. MR. 2 and 3 executed the impugned mortgage deed in the execution proceedings arising out of the decree for specific performance of the contract to mortgage in Suit No. 1161 of 1958 and the defendant appellant is bound by the terms and condition of the mortgage bond having had been executed by her along with the other joint debtors. 6. MR. Guha, the learned Advocate for the appellant defendant No. 3 next urged before us that the Suit No. 1161 of 1958 was hit by Section 47 of the Code of Civil Procedure and that the Court that passed the decree had no jurisdiction to entertain the suit and to pass the decree, and that the mortgage bond executed in terms of the decree in the execution proceedings of that suit was invalid and unenforceable having had been executed in terms of the decree passed by the Court that had no jurisdiction to entertain the suit being Suit No. 1161 of 1958 and to pass the decree therein. A suit was filed by Wadia and Bhoori against the defendant No. 1 in the Original Side of the Calcutta High Court being the other Suit No. 2817 of 1954. That was a suit for d solution of partnership and for other re1iefs, incidental to the main relief for dissolution of the partnership. In that suit, the present plaintiff-respondent on receipt of a notice from the Court appeared before the Court, and in that suit the Court ordered that the present defendant No. 1 would alone execute the deed of mortgage. But the defendant No. 1 did not do so. The suit for dissolution of partnership was decreed. The present plaintiff thereafter brought the suit No. 1161 of 1958 against the present defendant No. 1 and his transferee, the defendant No. 2. That suit was for a decree for specific performance of the contract to mortgage the cinema house in dispute. That suit was decreed. During the pendency of the suit the defendant No. 2 the purchaser from the defendant No. 1 of the cinema house and its equipment sold off the property to the defdt. No. 3 the appellant. That suit was for a decree for specific performance of the contract to mortgage the cinema house in dispute. That suit was decreed. During the pendency of the suit the defendant No. 2 the purchaser from the defendant No. 1 of the cinema house and its equipment sold off the property to the defdt. No. 3 the appellant. During the execution proceedings arising out of the decree in Suit No. 1161 of 1958, the present defendant No. 3, the appellant was impleaded in such proceedings and under the orders of the court the mortgage bund in the execution proceeding was executed in the manner already observed; MR. Guha contended that the present plaintiff having had appeared on receipt of a notice from the court in Suit No. 2817 of 1954 was an intervener and that as such, was a party to the suit, and that he having had been a party to the Suit No. 2817 of 1954, the suit brought by him being Suit No. 1161 of 1958 was hit by section 47 of the Code of Civil Procedure, and that the court that entertained the Suit No. 1161 of 1958 lacked jurisdiction to entertain such, suit in view of the provision of section 47 of the Code of Civil Procedure and that the decree passed by the court in the Suit No. 1161 of 1958 was a nullity and that the mortgage bond executed in terms of such decree in the execution proceeding was void and unenforceable; MR. Ghosh the learned Advocate for the plaintiff respondent pointed out that in the array of the plaintiff and the defendants in Suit No. 2817 of 1954 the name of the present plaintiff would not appear either as a plaintiff or as a defendant and that the plaintiff now the respondent having had not been added as a party in the Suit No. 2817 of 1954 the First element 'between the parties to the suit as appearing in Section 47 of the Code of Civil Procedure was wanting, and that the plaintiff could well maintain the Suit No. 1161 of 1958 before the High Court, and that the High Court had ample jurisdiction to entertain the suit that was not hit by section 47 of the Code of Civil Procedure : Order 1 rule 3 of the Code of Civil Procedure relates to the impleading of the necessary party to the suit and that is to be done by the plaintiff and order 1 rule 10 sub-rule 2 oil the Code of Civil Procedure contemplates that either the plaintiff or the defendant should apply to make any person a party to the suit. In that case; the court after giving notice to such person and hearing him shall add him as a party to the suit either in the array of the plaintiff or in the array of the defendant and shall order the plaint to be amended and issue of fresh summons upon the added party. There is the third alternative under order 1 rule 10 of the Code of Civil Procedure. The court sumotu may issue notice to a person to be added either as a plaintiff or as a defendant in the suit and after hearing him the court shall add him as a party. The last word in order 1 rule 10 sub-rule 1 of the Code of Civil Procedure is the word 'add'. So the court may suo motu or otherwise add a person as a party either as a plaintiff or as a defendant in the suit and may order the plaint to be amended and may order fresh summons to be issued if added as defendant to such a party. So the court may suo motu or otherwise add a person as a party either as a plaintiff or as a defendant in the suit and may order the plaint to be amended and may order fresh summons to be issued if added as defendant to such a party. Therefore in the Code of Civil Procedure there are the two procedures laid down by rules 3 and 10 of order 1 of the Code: The Court must, while adding a person as party to the suit, order that he be so added, and shall, then order the plaint to be amended : In the case of (3) Monghibai v. Cooverji Umersey reported in A.I.R. 1939 Privy Council, 170. Their Lordships of the Privy Council laid down a very pertinent principle under order 1 rule 10 and observed that once all parties are impleaded in the plaint arrayed either as plaintiff or defendant, the court can make the appropriate order and should give judgment in favour of persons who may be added as partly to the suit entitled to the relielfs claimed in the suit whether they be joined ay plaintiffs or defendants. So, in view of the Privy Council decision the court must, under order 1 rule 10, and a person either on the application of the plaintiff or the defendant or suo motu as a party to the suit and make consequential order in order to adjudicate the questions in dispute raised by the parties to. the suit so that the parties to the suit might obtain the reliefs available in the suit This being the position, the question of "Interyener" does not arise. There can be no intervener in a civil suit; either a person must be added as a party to the suit under order 1 rule 10 sub-rule 2 by the plaintiff, or by the defendant or by the court, and as such addition of a party to a suit must appear in the plaint being either arrayed as plaintiff or as defendant under the orders of the court. This being: the position of law the present plaintiff had not been arrayed in the category either of a plaintiff or of a defendant in the suit No. 2817 of 1954. Therefore, the contention raised by MR. Guha, the learned Advocate for the appellant does not appear to use to be sound while MR. This being: the position of law the present plaintiff had not been arrayed in the category either of a plaintiff or of a defendant in the suit No. 2817 of 1954. Therefore, the contention raised by MR. Guha, the learned Advocate for the appellant does not appear to use to be sound while MR. Ghosh's submission finds full accord with the law as enunciated by the Privy Council. Therefore, we hold that the present plaintiff having had not been a party to the suit in question, the Suit No. 1161 of 1958 was not hit by the provisions of Section 47 of the Code of Civil Procedure. The next contention raised by Mr. Guha, the learned Advocate for the appellant was that the Suit No. 1161 of 1958 was a suit for land within the meaning of that expression in clause 12 of the Letters Patent and that the Original Side of the High Court had no jurisdiction to entertain the Suit No. 1161 of 1958 since it related to land situated outside the local limits of the jurisdiction of Ordinary Original Civil Jurisdiction of the Calcutta High Court. Mr. Guha in support of his contention placed before us from a decision reported in (4) 49 CWN page 80 at page 94, an earlier decision of a single Bench of the Court in its Original Civil Jurisdiction, wherein it was held that a suit for specific performance of the contract to mortgage . was a suit for land and relying on that vary decision Mr. Guha submitted that the Suit No, 1161 of 1958 which was a suit for specific performance of contract to mortgage was a suit for laud and as such the High Court in its Original Civil Jurisdiction had no jurisdiction to entertain the suit which related to land situated outside the local limits of the Ordinary Original Side Jurisdiction of the Calcutta High Court. Mr. Guha, the learned Advocate, however, while relying on the decision quoted in (4) 49 CWN page 80 at page 94 submitted that some of the decisions of the Calcutta High Court on the point were conflicting and that all such decision came from a judge presiding single in the Ordinary Original Jurisdiction of this Court and that in the existing state of law the question should be referred to a larger Bench for a decision. The expression 'suit for land" in Clause 12 of the Letters Patent was interpreted by Their Lordships of the Federal Court in (5) Messrs Moolji Jaitha and Co. v. The Khandesh Spinning and Weaving Mills Co. Ltd. reported in AIR 1950 Federal Court Report, page 83. Their Lordships Patanjali Sastri, Mahajan JJ. as well, as Chief Justice Kania in their observations laid down that where the nature of the suit is such that it substantially involves a controversy about land or immovable property and the Court is called upon to decide conflicting claims to such property and a decree or order is prayed for which will bring about a change in title to it, that suit can be said to be in respect of land or immovable property. But where incidentally in a suit, the main purpose of which or that primary object of which is quite different, some relief has to be given about land, the title to it not being in dispute in the real sense of the term, then such a suit cannot fall within the four corners of the expression suit for land' occurring in Clause 12 of the Letters Patent both of Bombay and of Calcutta High Courts. The suit for specific performance of a contract to execute a mortgage bond as the Suit No. 1161 of 1958 was cannot be, in view of the Federal Court decision 'a suit for land'. Therefore, the Original Side of the High Court, when leave was obtained on the ground that part at the cause of action had arisen within the Presidency town of Calcutta, had ample jurisdiction to entertain try and decide the Suit No. 1161 of 1958. Since the decision of the Federal Court, we are not inclined to refer the contention raised by Mr. Guha to any larger Bench. The Federal Court's decision clinches the matter for all times to come. Accordingly, the contention raised by Mr. Guha, the learned Advocate for the appellant that the court that passed the decree in Suit No. 1161 of 1958 had no jurisdiction within clause 12 of the Letters Patent of the Calcutta High Court to entertain, try and decide such suit is not sound in law and is, therefore, overruled. Mr. Accordingly, the contention raised by Mr. Guha, the learned Advocate for the appellant that the court that passed the decree in Suit No. 1161 of 1958 had no jurisdiction within clause 12 of the Letters Patent of the Calcutta High Court to entertain, try and decide such suit is not sound in law and is, therefore, overruled. Mr. Guha the learned Advocate for the appellant submitted that there was no effective money lending license of the plaintiff and as such the suit in which the decree was passed now appealed against should not have proceeded to decree in absence of an effective money lending license held by the plaintiff. The learned Subordinate Judge found, and that very correctly, that the plaintiff was not running a business of money lending in Bengal. He accommodated the defendant No. 1 with the loan on two occasions covered by the mortgage deed and that also for commercial purpose of running a cinema house and that the defendant No. 1 did run the cinema house with the money lent and advanced by the plaintiff which ultimately was sold by him to the defendant No. 2 subject to the mortgage, who again sold the same to the defendant No. 3 subject to mortgage. Therefore, the learned Subordinate Judge rightly held that no licence was required under the law for the plaintiff to entitle him to the decree that was passed in the suit by the learned Subordinate Judge. 7. IN the result, we hold that the learned Subordinate Judge came to a right conclusion in his judgment and rightly decreed the suit against the defendant. The appeal, therefore, fails and is dismissed with costs. B. Banerji: J. 8. I am of the same opinion. I entirely agree with the conclusions reached by my Lord and would only add that the appellant could not, in view of the bar created by Section 2 of the Decrees and Orders Validation Act V of 1936, agitate in the court below the question as to whether or not High Court in its Original Side had, under clause 12 of the Letters Patent, jurisdiction to entertain Suit No. 1161/1958 and pass a decree therein for specific performance of contract in respect of lands lying outside Calcutta. Section 2 of the Decrees and Orders Validation Act V of 1936 runs thus : "No decree or order made by the High Court of Judicature at Fort William in Bengal, the High Court of Judicature at Madras or the High Court of Judicature at Bombay, in the exercise of its Ordinary Original Civil Jurisdiction under Clause 12 of its Letters Patent, or by the High Court of Judicature at Rangoon in the exercise of its Original Civil Jurisdiction under Clause 10 of its Letters Patent shall be called in question in any proceeding "before any other court' on the ground that the High Court passing the decree or making the order had no jurisdiction to pass or make the decree or order". Plainly, then, the contention, that the decree passed by the High Court in Suit No. 1161/ 1958 did not bind the Appellant being void for want of jurisdiction, cannot be accepted as sound and must fail. Furthermore, respondent would, even independently of the aforesaid decree, be legally entitled to implead and proceed against the Appellant who admittedly purchased the mortgaged property during the pendency of Suit No. 1161/1958 and that again with a clear and unambiguous stipulation that he was purchasing subject to the charge in favour of the respondent. As such, the appellant cannot, in any view of the matter, resist the claim to have the mortgaged sold, according to law, in satisfaction of the mortgage. This appeal is, therefore, dismissed with costs.