1. This is an Appeal by the first Defendant in a suit fordeclaration of title to immoveable property and for an injunction to restrainthe sale thereof in execution of a mortgage decree. On the 7th October 1896 thefirst Defendant took a mortgage of the property from the other four Defendants.He subsequently sued to enforce the security and obtained the usualmortgage-decree on the 25th August 1899. The decree was put into execution indue course, and a proclamation was served on the 13th August 1908, under whichthe sale was notified to take place on the 15th September 1908. On the 25thAugust 1908, the Plaintiffs, who are the sons of the mortgagor, commenced thissuit for declaration that they were not bound by the mortgage or by the decreenude on the basis thereof, and, also for consequential relief. The Court offirst instance held in substance that the Plaintiffs were bound by the mortgagetransaction, and that they were only entitled to redeem, as they would havebeen if they had been made parties to the mortgage-suit. Upon appeal theSubordinate Judge has reversed that decision and given the Plaintiffs a decree,which practically nullifies the mortgage-decree to the extent of their interestin the property. The Subordinate Judge has based his judgment on the groundthat the first Defendant was not the real mortgagee, that he was only theostensible mortgagee for the benefit of a real creditor, and, that consequentlyhe was not entitled to enforce the security though it stood in his name. Insupport of this position, he has invoked the authority of the decision inMahendra Nath Mukherjee v. Kali Prasad Johuri I. L. R. 30 Cal. 285 (1902). Thisview has been now assailed on behalf of the first Defendant as erroneous, andit has been contended that as the bond stood in his name, it was competent tohim to sue to enforce the security. In support of this argument, reliance hasbeen placed upon the case of Satchidanand Mahapatra v. Balaram Gorain I.L.R. 24Cal. 644 (1897), which was accepted as good law in Ham Gobinda v. Purna Chandra11 C. L. J. 47 (1909). In our opinion, there is no room for controversy thatthis contention is well-founded. In the case of Satchidanand Mahapatra v.Balaram Gorain I. L. R. 24 Cal. 644 (1897), it was ruled that a suit for foreclosureof a mortgage may be brought by the person named in the mortgage deed as themortgagee, although he was in fact only the benamdar of the beneficial owner,and that such a suit should not be dismissed on the ground that the beneficialowner has not been joined as a party. The learned Judges add that the samepoint had been brought up for decision to this Court before and that it hadbeen decided that the contract could be enforced by the parties who had enteredinto it and that the suit should not fail merely because the beneficial ownerwas not on the record. The earlier decision to which reference was thus madewas apparently the case of Sreenath Nag v. Chandra Nath Ghost 17 W. R.192(1872), where, as subsequently pointed out in the case of Bhubaneswar Roy v.Jogeswar Chowdhurani 22 W. R. 413 (1874), it was ruled that in a case ofmortgage where A advanced money taking a bond in the name of B, if a suit wasafterwards brought in the name of B, the suit should not be defeated on theground that he was merely the ostensible mortgagee ; A was the person whosought to enforce the mortgage and as the Defendant had received the money fromA, and chosen to contract with B, it did not lie in his mouth to object to theinstitution of the suit in the same form. It is clear, therefore, that if thissuit were insisted by the mortgagor alone, it would not be competent to him todispute that the ostensible mortgagee was entitled to maintain it. We are ofopinion that the sons of the mortgagor, who are bound by the mortgage bondequally with the executant, do not slant in any better position. The case ofMohendra Nath Mukerjee v. Kali Prosad Johury I. L. R. 30 Cal. 265 (1902), whereit was ruled that a benamdar as such is not entitled to maintain a suit forrecovery of possession of immoveable property which stands in his name, isplainly distinguishable and does not touch the question now before us. Aspointed out by Mr. Justice Mitter in the case of Gopinath Chowbey v. BhagwatPershad I. L. R. 10 Cal. 697 (1884), so long as benami system is recognised, itis to be presumed, in the absence of any evidence to the contrary, that a suitinstituted by a benamdar has been instituted with the full authority of thebeneficial owner, and any decision made in such a suit is as much binding uponthe real owner as if the suit had been brought by the real owner himself. Underthese circumstances, we must hold that the ground assigned by the SubordinateJudge for his decision cannot be supported.

2. The result is that this Appeal is allowed, the decree ofthe Subordinate Judge set aside and that of the Court of first instancerestored with one variation. The Court of first instance allowed the Plaintiffsto redeem within three months from the 14th June 1909 and directed that in the mortgageaccounts interest was to be calculated only up to date of the judgment. Thetime fixed for redemption has long since elapsed and we understand that thePlaintiffs have not availed themselves of the opportunity afforded to them. Inthe circumstances of the present case, we think that as the decision of thefirst Court is to be restored, a fresh date must be fixed for redemption, NoorAli v. Koni Meah I. L. R. 13 Cal. 13 (1886), Nam Narain v. Raghunath I. L. R.22 Cal. 467 (1895), Tarachand v. Brojo Gopal 17 C. L. J. 120, 122 (1912). Weaccordingly direct that the records be sent down to the Court of first instanceand that accounts be taken of the sum due under the mortgage-decree up to thedate of the account (Kedar Lal v. Bishen L. R. 31 I. A. 57 : S. C. I. L. R. 31Cal. 332 (1903), Gangadas v. Jagendra 5 C. L. J. 315, 323 (1907) Gurdeo v.Chandrika 5 C. L. J. 611, 637 (1907) and that the Plaintiffs be allowed toredeem within 15 days of the date when the sum payable for redemption has beennotified to them after determination by the Court of first instance. TheDefendant Appellant is entitled to his costs both here and in the Court ofAppeal below. If the Plaintiffs do not redeem within the time allowed, the suitwill stand dismissed with costs in all the Courts.

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Kirtibas Das vs.Gopal Jiu (08.04.1913 - CALHC)