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Showing contexts for: ejectment execution in Bhagaban Chandra Kundu vs Tarak Chandra Basak And Ors. on 5 July, 1926Matching Fragments
3. We have now to consider whether the plaintiff, who repudiates his liability to redeem the defendants, is entitled to recover possession on the strength of his purchase of the equity of redemption in a portion of the property in the year 1321 B.S. The plaintiff denied the validity or the bona fides of the mortgage under which Defendant No. 3 claimed. But it has been found by both the Courts below that the transaction is valid and binding on the parties to it. The question then is whether a purchaser of a portion of the mortgaged property from the mortgagor subsequent to the mortgage, who was not made a party to the mortgage suit but who has been ousted from the possession of the mortgaged property by the purchaser in execution of the mortgage decree, is entitled to recover possession on the basis that the execution purchaser is a trespasser. There has been some divergence of opinion in this Court on the question. The contention of the learned vakil for the appellant finds support in two cases : Grish v. Iswar [1898] 4 C.W.N. 452 and Habibullah v. Jugdeo Singh [1901] 6 C.L.J. 609. Those cases, however, are not in accordance with the previous decisions of this Court and have been doubted subsequently. The cases taking the contrary view are numerous and many of them are referred to in the case of Kalu v. Abhoy Charan A.I.R. 1921 Cal. 157, in which the two cases mentioned above were not followed. Certain other cases have been cited before us on behalf of the appellant, but those do not directly touch the question as in those cases the purchaser in execution of a mortgage decree obtained in the absence of a necessary party sued in ejectment the absent party who was in possession, It was argued that the same reasoning on which those cases were decided may be applied to the present case. But the position of a person in possession whoso right to redeem is subsisting and unaffected by a decree when sued in ejectment as a trespasser by a mortgagee or a purchaser in execution of an imperfect decree, is not the same as that of the plaintiff in this case who sues in ejectment.