MAHESH KUMAR KEJRIWAL vs VIJAY KUMAR KEJRIWAL AND ORS.
- Court
- Calcutta High Court
C.O. 41 OF 2026
Judgment Dated: 13-11-2026
WBCHCA0005322026
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISION JURISDICTION
APPELLATE SIDE
CORAM: THE HON’BLE JUSTICE OM NARAYAN RAI
C.O. 41 OF 2026
WITH
CAN 1 OF 2026
MAHESH KAUMAR KEJRIWAL ..…PETITIONER
-VERSUS-
DR. VIJAY KUMAR KEJRIWAL & OTHERS ..…OPPOSITE PARTIES
Appearance:
For the Petitioner : Mr. Jishnu Saha, Sr. Adv.
Mr. Aniruddha Mitra, Sr. Adv.
Mr. Debdut Mukherjee, Adv.
Mr. Ishaan Saha, Adv.
Mr. Kaushik Banerjee, Adv.
Ms. Rashmita Sen, Adv.
For the Opposite Party Nos.1, 2 & 4 : Mr. Jishnu Choudhury, Sr. Adv.
Mr. Shuvasish Sengupta, Adv.
Mr. Suvrojyoti Mukherjee, Adv.
Mr. Anurag Bagaria, Adv.
Mr. Andolan Sarkar, Adv.
Reserved on : September 14, 2026
Judgment on : November 13, 2026
OM NARAYAN RAI, J.:-
1. This revisional application under Article 227 of the Constitution of India is directed
against an order dated December 22, 2025 passed by the learned Civil Judge
nd
(Senior Division), 2 Court at Alipore, South 24 Parganas, in Title Suit No. 27 of
2023, whereby the petitioner’s application under Section 151 of the Code of Civil
1
Procedure, 1908 was rejected.
1
Hereafter ‘the Code’
Page 1 of 20
C.O. 41 OF 2026
FACTUAL MATRIX:
2. Shorn of meticulous details, the facts relevant for adjudication of the present
revisional application, as may be gathered from the material on record, are as
follows:-
a. The opposite party no. 1 has instituted Title Suit No. 2778 of 2010 before the
th
learned Civil Judge (Senior Division), 5 Court at Alipore, praying inter alia for
a decree for partition, permanent injunction and accounts in respect of the
properties mentioned in the First Schedule of the plaint. Subsequently, on the
prayer of the opposite party no. 1, the opposite party no. 2 was also added as a
plaintiff since the opposite party no.1 had transferred his entire share in
respect of the First Schedule properties in favour of the opposite party no. 2 by
two registered deeds of gift dated June 24, 2022 and June 28, 2022. The said
suit was subsequently re-numbered as Title Suit No. 27 of 2023.
b. The petitioner before this Court has been arrayed as the defendant no. 2 in the
suit. The petitioner contested the suit by filing a written statement denying all
the material allegations of the plaint and averring that the First Schedule
properties were mortgaged to the Punjab National Bank (erstwhile Bank of
India) and as such the same could not be partitioned unless the mortgage
debts were paid.
c. Subsequently, the petitioner filed an additional written statement thereby
contending that while flat no. 3A was mortgaged with Punjab National Bank,
flat no. 3B stood mortgaged with Indian Bank to secure the credit facilities
obtained from them. It was also averred therein that the petitioner had
deposited certain amounts pursuant to orders passed by the Debts Recovery
Tribunal and the Debts Recovery Appellate Tribunal to prevent the said flats
from being sold by the Banks in order to recover their debts.
d. Evidence was adduced by the plaintiff as well as the defendant nos. 1 and 2
and ultimately, the suit was decreed in preliminary form on March 24, 2025.
The said decree was challenged before this Court by filing separate appeals by
the plaintiff/opposite party no. 1, the defendant no. 3/opposite party no. 4 and
the defendant no. 4/opposite party no. 5.
e. All the said three appeals were heard and disposed of by the Hon’ble Division
Bench of this Court by a common judgment and order dated September 10,
2025, thereby modifying the preliminary decree to the extent that “ the existence
of the share declared in favour of the plaintiffs shall be in respect of both the flat
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C.O. 41 OF 2026
nos. 3A and 3B ”. The Hon’ble Division Bench directed that as only preliminary
decree had been passed, the suit would revive and survive till the passing of the
final decree. The parties were granted liberty to apply for appointment of an
Advocate Commissioner as settlement appeared to have failed.
f. Thereafter, the opposite party no. 2 filed an application praying for
appointment of a partition Commissioner for partitioning the suit property by
metes and bounds in accordance with the modified preliminary decree. Such
application was allowed by the learned Trial Court by an order dated November
10, 2025, by appointing an Advocate Commissioner.
g. Subsequently, the petitioner took out an application under Section 151 of the
Code praying for determination and adjudication of the amounts due and
payable by the plaintiffs to the petitioner prior to the division of the suit
properties by metes and bounds, in accordance with the modified preliminary
decree and also for a direction on the parties to pay to the banks and the
financial institutions such further or other sum that might be required to be
paid to such banks or financial institutions in the event it was found that any
further sum was required to be paid to such banks or financial institutions.
h. In the said application, the petitioner has asserted that he had paid substantial
amounts for preservation of the suit properties and also to ensure that the suit
properties were not sold off in recovery proceedings initiated by the Banks. It is
the petitioner’s case that as the petitioner has paid substantial sums to redeem
the mortgage of the suit properties, mortgaged with the Bank and/or financial
institutions and as such, the petitioner has stepped into the shoes of the
mortgagee Bank and is entitled to receive such amount proportionately on the
basis of the shares of the parties in the suit properties as declared by the
learned Trial Court by the judgment dated March 24, 2025, and subsequently
modified by this Court on September 10, 2025.
i. The petitioner claimed to have a right of subrogation and sought to enforce the
said right. The petitioner claimed that sums of Rs. 1,29,75,510/- had been paid
by way of demand draft in favour of the Bank or the Debt Recovery Tribunal
and neither the plaintiff no. 1 nor the defendant no. 3 had paid any amount to
the Bank to save the suit property.
j. The petitioner alleged that although the entirety of the dues had been paid by
the petitioner, the Bank did not issue the no objection certificate and as such
the property still remained mortgaged. The petitioner has thus claimed that the
learned Trial Court should determine and adjudicate the amounts that are
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C.O. 41 OF 2026
payable by the plaintiff and the defendant no. 3 to the petitioner on account of
redemption of mortgage and on account of charge that the petitioner has over
the suit properties.
k. The plaintiffs/opposite party nos. 1 and 2 opposed the said application by filing
a written objection indicating therein the dilatory tactics adopted by the
petitioner/defendant no. 2 to prolong the litigation. The opposite party nos. 1
and 2 asserted that repayment to the Bank was done using the borrower firm’s
resources and that even if the petitioner’s case is taken as correct, the
petitioner has only discharged his own liabilities for which he alone was
responsible. It was asserted that had the family’s dwelling house been sold to
liquidate the defendant no. 2’s liabilities it would have been incumbent upon
the defendant no. 2 and his firms to compensate the plaintiffs and defendant
no. 3 and that being so the question of claiming anything from the plaintiffs or
the defendant no. 3 could not arise. It was further asserted that the application
filed by the petitioner is in the nature of a counter-claim which cannot be made
at this stage inasmuch as the same would be beyond the written statement and
the pleadings. It was asserted that claims relating to property tax, electricity
charges and maintenance charges detailed in paragraph 11A to 11D of the
application from subject matter of dispute in C.S 377 of 2013 filed by the
defendant no. 2 before this Court and claims relating to Arcil, Punjab National
Bank, Indian Bank and legal expenses detailed in paragraph 11E to 11H of the
said application from the subject matter of dispute in claim filed by the
defendant no. 2 in the proceeding before the arbitrator appointed by this Court
by an order dated June 13, 2014 passed in APO 381 of 2011.
l. The learned Trial Court considered the material on record and the submissions
made by the parties and thereafter, by an order dated December 22, 2025
rejected the petitioner’s application under Section 151 of the Code. Feeling
aggrieved thereby, the petitioner has approached this Court by way of the
present revisional application.
SUBMISSIONS ON BEHALF OF THE PETITIONER:
3. A brief summary of the submissions made by Mr. Saha, learned Senior Advocate
appearing for the petitioner (both orally as well as by way of written notes), is as
follows:-
a. The petitioner’s application was dismissed by the impugned order on
essentially two grounds - (a) the petitioner/defendant no. 2 had already
Page 4 of 20
C.O. 41 OF 2026
approached this Hon’ble High Court to get relief pertaining to the claim of
financial expenditures incurred towards redemption of mortgage of the suit
property; and (b) the question had not been raised by the petitioner in the
appeal preferred before this Hon’ble Court against the preliminary decree.
b. The instant revisional application has been filed as - (i) the earlier approach to
this Hon’ble Court referred to in the impugned order does not concern the
redemption of mortgage of the suit flats as will be evident from the plaint filed
in the C.S. No. 377 of 2013, being confined to the failure of the defendant no. 1
in the suit to pay 50% of the expenses in terms of a family settlement entered
into between the parties in respect of municipal rates and taxes, electricity
expenses, expenses for internal maintenance of flats and towards annual
subscription payable for the same to the ownership association; and (ii) the
appeal preferred against the preliminary decree before this Hon’ble Court did
not concern the matter of subrogation at all and was confined only to the
question as to whether the preliminary decree should be confined to one flat or
should extend to both flats.
c. The petitioner had, in the additional written statement filed in the suit asserted
that he had redeemed the mortgage of the suit flats by paying the bank’s dues.
d. Accordingly, this issue was taken up for consideration at the time of passing of
the preliminary decree and was postponed for being decided at the final decree
stage, as will appear from the judgment and decree itself.
e. This apart, as the entire dues of the bank has been paid, the petitioner has
filed an application being M.A. 25 of 2018 before the Debts Recovery Tribunal
seeking return of the title deeds of the mortgaged flat.
f. The following judgements of the Hon'ble Supreme Court were relied on to
contend that - (i) a redeeming co-mortgagor discharging the entire mortgage
debt, which was the joint and several liability of himself and his co-mortgagor,
was in equity entitled to be subrogated to the rights of the mortgage redeemed
and to treat the non-redeeming co-mortgagor as his mortgagor to the extent of
the latter's portion or share of the hypotheca and to hold that portion or share
as security for the excess payment made by him. (ii) Such equitable right of the
redeeming co-mortgagor stems from the doctrine that he was a principal debtor
in respect of his own share only, and his liability in respect of his co-debtor's
share of the mortgage debt was only that of a surety; and when the surety had
discharged the entire mortgage debt, he was entitled to be subrogated to the
securities held by the creditor, to the extent of getting himself reimbursed for
Page 5 of 20
C.O. 41 OF 2026
the amount paid by him over and above his share to discharge the common
mortgage debt.
2
i) Ganeshi Lal vs. Joti Pershad );
3
ii) Valliamma Champaka Pillai vs. Sivathanu Pillai & Others ; and
iii) Krishna Pillai Rajasekharan Nair (Dead) by LRS. vs. Padmanabha
4
Pillai (Dead) by LRS. & Others
g. There is no prior proceeding between the parties concerning the petitioner’s
right of subrogation following his discharge of the mortgage debt.
h. C.S. No. 377 of 2013 is confined to the failure of the defendant no. 1 in the suit
to pay 50% of the expenses in terms of a family settlement entered into between
the parties in respect of municipal rates and taxes, electricity expenses,
expenses for internal maintenance of flats and towards annual subscription
payable for the same to the ownership association.
SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
4. A brief summary of the submissions made by Mr. Choudhury, learned Senior
Advocate, appearing for the opposite parties, is as follows:-
a. The family residence of the Kejriwal Family was at Flat Nos. 3A and 3B at 57G,
Ballygunge Circular Road, Kolkata 700 019. Due to disputes, the opposite
party nos.1, 2 and 4 were compelled to leave the family residence. The opposite
party no. 1 subsequently filed a suit for partition, in view of the fact that the
suit premises had been jointly acquired.
b. The suit for partition is not on the basis of the suit premises being a joint
family property, but on the basis that the property had been jointly acquired by
purchase. This is an admitted position between the parties and also forms
basis of the preliminary decree which has since been affirmed by the Hon'ble
High Court and has attained finality.
c. There was also a final conclusive family settlement dated September 29, 2002.
Arising out of this family settlement, there were several litigations pending
between the parties.
d. In the present suit for partition, a preliminary decree declaring the shares of
the parties was passed. The appellate decree upheld the same. A conjoint
reading of the Trial and Appeal Court decrees entitle the parties to apply for
2
(1952) 2 SCC 373
3
(1979) 4 SCC 429
4
(2004) 12 SCC 754
Page 6 of 20
C.O. 41 OF 2026
appointment of Commissioner of Partition, if issues relating to partition after
preliminary decree are not settled within a time frame.
e. The contentions raised in the Section 151 application had also been argued at
the time of passing of preliminary decree dated March 24, 2025. The
preliminary decree defers the question for adjudication at the stage of passing
of final decree.
f. Since partition could not be affected amicably, an application for appointment
of Commissioner of Partition was made and Commissioner of Partition was
appointed on November 10, 2025. Commissioner of Partition has prepared and
submitted his final report. The parties are having the question of acceptance of
the final report and passing of final decree adjourned in view of the pendency of
the present proceeding.
g. The petitioner had preferred an application under Section 151 of the Code
praying, inter alia , for determination of the amount which is due and payable
by the plaintiff and defendant no.3 to the petitioner prior to the division of the
suit properties. The application is on the basis that- (a) The petitioner has been
incurring expenditure in relation to the flat, including for maintenance charges
to the maintenance society, corporation rates and taxes, electricity dues, etc.
(b) The suit premises was mortgaged with Punjab National Bank and Indian
Bank and the petitioner claims to have "redeemed" the mortgage after making
payment of the amounts due to the banks. The petitioner relies upon Section
5
92 of Transfer of Property Act, 1882 and claims to have stepped into the shoes
of the banks and is entitled to exercise right of mortgagee by subrogation. On
this basis, the petitioner is claiming to be entitled to resist passing of final
decree. (c) It was therefore the principal contention that the final decree must
take into account the rights of alleged "subrogation" of the petitioner in the suit
properties. Secondly, the petitioner claims that he is entitled to recover monies,
on account of the expenditure incurred. (d) The question of whether the
petitioner can resist passing of final decree on the above basis, was raised in an
application under Section 151 of the Code.
h. Written objection was filed to such application by opposite party no. 2 at page 5
of supplementary affidavit affirmed on August 12, 2026.
i. The learned Trial Court, after consideration of the application, the documents
annexed thereto, as well as the written objection filed on behalf of the
defendant no. 2 in the learned Trial Court below, had come to the conclusion
5
Hereafter ‘the 1882 Act’
Page 7 of 20
C.O. 41 OF 2026
that the prayers made in the Section 151 application cannot be acceded to, and
the said application was dismissed vide order dated December 22, 2025.
j. The petitioner's Case on alleged "redemption" of mortgage is beyond his
pleadings, and is in fact, contrary to his own pleadings in the suit.
k. In the written statement and in the additional written statement filed by the
petitioner, it is nowhere mentioned or alleged that there has been redemption of
the mortgages created in favour of the two banks. However, to the contrary, it is
always admitted and pleaded that proceedings are pending and no redemption
has occurred. This will be evident from the petitioner's written statement
where, the petitioner has taken a stand that the flats in question are mortgaged
properties and they cannot be partitioned unless mortgage debts are paid.
Further, in paragraphs 7(d) and (e) of the additional written statement, the
petitioner has stated that appeals were pending before the DRAT from orders
directing deposits to be made.
l. In evidence on affidavit filed by the petitioner in the suit, it would be evident
that the DRT and DRAT proceedings were pending. In paragraph 8(i), the
petitioner has admitted that ‘first schedule property being mortgaged’ . This is
an admission that the mortgage was continuing.
m. In supplementary evidence of the petitioner, it is alleged that title deeds are
with the bank and NOC has not been issued despite entire dues being allegedly
paid off. Again, the petitioner is alleging that he has allegedly paid off the dues
but is further admitting that redemption of mortgage has not happened.
n. In Section 151 application, the petitioner has also factually admitted that the
mortgage continues. While in paragraph 18 of the Section 151 application, the
petitioner has stated that the mortgage has been redeemed, in paragraph 26
thereof, the petitioner has stated that the entire dues have been paid but no
objection certificate is not issued, and that the property still stands mortgaged.
o. Further in paragraph 26 of the Section 151 application the following statement
has been made:-
“That the entire dues had been paid by the petitioner but the bank did not issue ‘no
objection certificate’ and as such the suit property still stands mortgaged in favour of
the bank. The title deed of the suit property is still lying with the bank.”
p. Therefore, the case of the petitioner in the Section 151 application is that the
property still stands mortgaged with the bank. Clear statement has been made
by the petitioner. This is the foundation of the petitioner’s case in the Section
151 application from which the petitioner is not permitted to deviate. The
Page 8 of 20
C.O. 41 OF 2026
petitioner cannot therefore argue or contend, having regard to his admission,
that the mortgage has been redeemed. A judgment of the Hon’ble Supreme
6
Court in the case of Bachhaj Nahar vs. Nilima Mandal was relied on for
such purpose.
q. The petitioner in written statement/additional written statement/affidavit of
evidence/additional affidavit of evidence, makes out a case that it has allegedly
made payment of all dues to the bank but the bank has not issued NOC, and
that the mortgage subsists and proceedings in connection therewith are still
pending adjudication. If NOC has not been issued, mortgage has not been
redeemed. This is also inconsistent with the stand taken in Section 151
application and the petitioner goes on to state that the suit property still stands
mortgaged in favour of the bank.
r. The petitioner is therefore estopped from arguing contrary to its pleaded case
and/or cannot contend that the mortgage has been redeemed.
s. Not a single document has been produced in the suit or in the Section 151
application or in the present petition to show that there has been redemption of
mortgage by the banks. Title deeds being with the petitioner, is also not
mentioned, which would have been the position if mortgage had been
redeemed.
t. The order dated July 02, 2014 passed by the Learned DRAT relied on by the
petitioner at page 195 of the Section 151 application does not record that the
debt has been re-paid. On the contrary, it records that further sums are
required to be paid and the debt remains unpaid even after payment of a sum
of rupees one crore by the petitioner.
u. Therefore, the petitioner cannot claim any right under Section 92 of the 1882
Act. It cannot claim to be mortgagee or having stepped into the shoes of
mortgagee. Whether entire dues of banks have been repaid remains a disputed
question before learned DRT and this Hon’ble Court in revisional applications
filed by the petitioner being C.O. No. 2620/2014, C.O. No. 2635/2014, C.O.
No. 2636/2014, and C.O. 2637/2014.
v. The petitioner claims to have made payments to the bank, but has not obtained
redemption of mortgage. In such situation, the question that arises is what
right would the petitioner have?
w. At best, the petitioner may be entitled to make a money claim under applicable
law. The petitioner would have an entitlement, after having paid the banks for
6
(2008) 17 SCC 491
Page 9 of 20
C.O. 41 OF 2026
release of mortgage, to recover this amount from other co-mortgagers. This
must also be read in conjunction with the petitioner's statement that under the
family settlement, the liability was to be jointly paid by the two groups. This
position is however disputed by the opposite parties, who say that the
petitioner has to pay entirety of the sums and/or in terms of the family
settlement of September 29, 2002. The petitioner's right to money claim is also
thus not clear and would require adjudication.
x. In any event, for this money claim, the petitioner cannot prevent passing of
final decree. Even in the Section 151 application, the petitioner has proceeded
on his money claim. A money claim of the petitioner cannot prevent decree for
partition being passed.
y. In any event, the alleged money claim of the petitioner cannot be made in this
suit since the very same money claim has been made in prior proceedings:-
i. CS No. 377 of 2013 filed before this Hon'ble Court;
ii. Arbitration proceedings before Mr. Ranjan Bachawat, Learned Senior
Advocate, Learned Sole Arbitrator.
z. In the suit being CS No. 377 of 2013, the petitioner has claimed refund of all
expenses concerning the property, for example, maintenance expenses,
electricity expenses, corporation rates and taxes, etc. The same claims as
contained in the said letter are to be found at paragraph 19-22 of the plaint in
CS 377 of 2013.
aa. The prayer in the plaint is for the same amount along with a claim for future
expenses. The heads of claims are similar to those found in paragraph 11(a) to
(d) of the Section 151 application (page 190). Heads of claims are identical. The
figures are not identical but that is natural because the suit has been filed in
the year 2013 with a prayer for future claims. Section 151 application has been
filed in 2026. The said suit is pending and this claim cannot be re-agitated in
this proceeding.
bb. In the arbitration proceedings, claims have been made on account of alleged
payments made to banks.
cc. The heads of claims are similar to those found in paragraph 11(e) to (h) of the
Section 151 application. This proceeding is pending but has been abandoned. If
at all further claims on account of further payments made to Banks are to be
included, it would have to be included in this arbitration proceeding.
Page 10 of 20
C.O. 41 OF 2026
dd. A chart showing that the claims made in the Section 151 application were
identical to the claims made in the suit and the arbitration proceedings was
also appended to the written note. The same is as follows:-
Sl.
Claims made in Section
Claims made in other
Reference to other
No.
151 Application [page
proceedings
Proceedings
190-191]
1. Para 11 (a) Property tax
Property tax for Flat No.
See Schedule A
for flat no. 3A
3A
annexed to CS
377/2013 [page 86
2. Para 11(b) Property tax for
Property tax for flat no.
of Supplementary
flat no. 3B
3B
Affidavit of
3. Para 11 ©- Electricity
Electricity charges for
opposite party no.
charges for Flat No. 3A
Flat No. 3A and 3B
2 affirmed on 12
and 3B
August 2026]
4. Para 11 (d) Maintenance
Maintenance payable
charges payable to
charges to Radhika
Radhika Apartment
Apartment Owners’
Owners’ Association
Association
5. Para 11 (e) Sum of Rs.
Para 18 (c) – Sum of Rs.
20,00,000/- paid to
20,00,000/- paid to
Indian Bank
Indian Bank
6. Para 11 (f) Sum of Rs.
Para 18(d) Sum of Rs.
9,77,510/ paid to Indian
9,75,510/- paid to Indian
Bank
Bank
7. Para 11 (g) Money paid to
Para 18(a) & 18(b) Money
mortgagee bank /
paid to mortgagee bank/
financial institution
financial institution
8. Para 11 (h) Legal expenses
Para 18 (e) Legal
incurred
expenses incurred
ee. Money claim cannot be made or urged in the present proceeding or in any other
proceeding by the petitioner.
ff. In fact, the learned Court below at internal pages 3 and 4 of the impugned
order took note of the abovementioned suit and arbitration proceeding on
identical claims and on this ground rejected the petitioner’s Section 151
Page 11 of 20
C.O. 41 OF 2026
application. Arbitration proceeding, since abandoned, closes the petitioner’s
right. Anyhow, that is for the petitioner to contend elsewhere.
gg. In any event in terms of Section 92 of the 1882 Act, there is no right to
subrogation when the alleged “payment” is not in full satisfaction of the debt.
Therefore, there cannot be any subrogation on any “partial” repayment of debt.
Reliance was placed on the judgment of Gurdeo Singh & Others vs.
7
Chandrikah Singh & Others .
hh. Assuming without admitting that the petitioner had “redeemed” the mortgage,
he would have not become a mortgagee by subrogation but would have
occupied position akin to mortgagee. He has the rights “as a mortgagee”, not
rights “of mortgagee”.
ii. For such purpose the judgment in the case of Variavan Saraswathi &
8
Another vs. Eachampi Thevi & Others was relied on. Same right as
mortgagee would entitle the petitioner to sue for foreclosure and sale. No suit
for foreclosure or sale has been filed. Therefore, the petitioner cannot claim any
right in the suit property. Thus, even on such assumptions the petitioner
cannot prevent a final decree from being passed.
th
jj. The Section 151 application was the 27 application filed in the suit. Several
orders were passed by various Courts for expeditious disposal of the partition
suit, after taking into account the dilatory tactics of the petitioner. Various
orders passed by this Court as well as an order of the Hon’ble Supreme Court
were referred to assert that the petitioner’s conduct has been reprehensible. In
particular, the following orders were referred to:-
i. Contempt order dated August 13, 2024 directing petitioner along with his
lawyer to pay cost of Rs. 50,000/- and render written apologies for their
conduct before the learned Trial Court;
ii. The Hon’ble Supreme Court order dated December 09, 2024;
iii. This Court orders – directing expeditious disposal being order dated July
10, 2015 , order dated January 13, 2023, order dated July 07, 2023, order
dated July 16, 2024, order dated August 13, 2024 and order dated
September 11, 2024
kk. Article 227 proceeding is not the same as appellate proceeding for correction of
error. The supervisory jurisdiction is not available to correct mere errors of fact
7
(1907) 5 CLJ 611
8
1993 Supp (2) SCC 201
Page 12 of 20
C.O. 41 OF 2026
or of law. A judgment of the Hon’ble Apex Court in the case of Surya Dev Rai
9
vs. Ram Chander Rai & Others was relied on for such purpose.
ll. No case of material irregularity or lack of jurisdiction of the learned Court
below or perversity exists in the facts of the case have been argued.
REJOINDER SUBMISSIONS ON BEHALF OF THE PETITIONER:
5. Mr. Saha, learned Senior Advocate appearing for the petitioner has been re-joined
as follows:-
a. The opposite parties have, however, sought to oppose the instant revisional
application on the following grounds - (a) the petitioner’s case of redemption
was beyond the pleadings and was not a subject matter of consideration in the
suit; (b) the petitioner had given no evidence of redemption of the mortgage; (c)
in any event, as the mortgage had not been redeemed in full the petitioner was
not entitled to the benefit of Sections 92 and 95 of the 1882 Act; (d) even
assuming that the petitioner had become entitled to the benefit of subrogation,
he would only have the same rights as the mortgagee, and consequently would
only be entitled to file a suit for foreclosure, which the petitioner had not done;
(e) there were separate prior proceedings between the parties concerning the
same subject matter and as such there could be no scope for the petitioner to
raise the issue in the partition suit.
b. There is no clearly no basis for the contention that the petitioner’s case of
redemption was beyond the pleadings is clearly borne out from the Additional
Written Statement filed by the petitioner in the partition suit.
c. There is also no basis for the contention that the petitioner had given no
evidence of redemption of the mortgage as the opposite parties have himself
clearly admitted that the entire dues of the bank have been paid. As such, the
mere fact that the bank has not yet returned the title documents of the
property can be of no consequence whatsoever. That the entire dues of the
bank have been paid, has been admitted by the opposite parties in (i) the
written objection filed to the application under Section 151 of the Code (at para
7); (ii) a Gift Deed dated June 24, 2022 and (iii) a Gift Deed dated July 03,
2025.
d. The opposite parties are accordingly estopped from contending and in any
event are not entitled to contend that the mortgage had not been redeemed in
9
(2003) 6 SCC 675
Page 13 of 20
C.O. 41 OF 2026
full or that the petitioner is not entitled to the benefit of Sections 92 and 95 of
the 1882 Act.
e. The contention of the opposite parties that even assuming that the petitioner
had become entitled to the benefit of subrogation, he would only have the same
rights as the mortgagee, and consequently would only be entitled to file a suit
for foreclosure, which the petitioner had not done, is also clearly without merit.
The judgments of the Supreme Court relied on earlier were reiterated.
ANALYSIS & DECISION:
6. The preliminary decree passed by the learned Trial Court expressly reserved a pool
of questions to be decided by the learned Court at the final decree stage. To be
specific, the learned Trial Court observed thus:-
“I will like to keep it on record that for the present I am not inclined to get involved into
the questions whether the suit property was mortgaged with the bank, who mortgaged the
property, what was the purpose of mortgaging the suit property, for whose benefit the
property was mortgaged, whether any amount has been paid towards liquidation of the
said mortgage, who has spent the said money etc. Plaintiffs have come before the court
praying for partition of the suit property. At this stage it is the duty of the court to decide
whether plaintiffs are entitled to get the decree of partition as prayed for. What will be the
consequence of declaring the share in the suit property, how the parties will be affected by
the decree of the court if any at all is passed, how the question of liquidation of mortgage
with regard to the suit property in the light of the decree will be dealt with, all these
questions will be taken up taken care of at the time of passing a final decree considering
the evidence lying with the record at the proper stage of trial. For the present the only task
of the Court is to declare the share of the plaintiffs as well as of the defendants in the suit
property".
7. It is significant to note that what had been postponed for decision were all
questions relating to the mortgage of the suit properties and nothing more. There
appears to be reasonable basis for such questions to arise inasmuch as the
petitioners pleadings in the written statement and the additional written statement
clearly indicate that the First Schedule properties were mortgaged with the lender
Banks and that deposits were made by the petitioner under orders of the DRT and
DRAT in order to save the mortgaged properties from being sold in recovery
proceedings initiated by the lender Banks. There is also evidence adduced by the
petitioner in such regard. The relevant pleadings and the evidence may be noticed
first.
8. In the written statement filed by the petitioner he indicated that as the properties
stood mortgaged with Banks therefore the same were impartible. The relevant
pleadings made in the written statement are extracted hereinbelow:-
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C.O. 41 OF 2026
5. The first schedule property is mortgaged to New Bank of India (now known as Punjab
National Bank). Punjab National Bank had filed recovery proceeding before the Debts
Recovery Tribunal-III Kolkata, whereupon the Learned Debts Recovery Tribunal-III
Kolkata has issued a certificate for recovery of a sum of Rs. 1,25,00,000/- along with
interest calculated @ 10.75% per annum from March 31, 1994 until payment of the said
sum to the bank. The first schedule property being mortgaged to the bank cannot be
partitioned unless the mortgaged debts are paid. The plaintiff is fully aware of the same
and despite thereof has filed the above suit only to harass the defendants Nos.1 and 2.”
9. In the additional written statement, the petitioner averred that he had deposited
sums under orders of the DRT and DRAT in order to save the mortgaged properties
from being sold in recovery proceedings initiated by the lender Banks. The relevant
sub paragraphs of paragraph 7 the additional written statement are extracted
hereinbelow:-
“b) Diverse orders challenged by the defendant no.2 along with his father the original
defendant no.1 before the Hon'ble Debt Recovery Tribunal. From the diverse orders passed
by the Recovery Officer, DRT it would be evident that the present plaintiff along with the
defendant no.3 has not only consented but have left no stone unturned to ensure that not
only flat no. 3A, but also the other flat which is not mortgaged with Punjab National Bank
is sold in the recovery proceedings. It is only the defendant no.2 and the original defendant
no.1 who are all along resisted, opposed, the wrongful and illegal action of the bank and
orders but the plaintiff sought to be sold. Some orders passed by the Recovery Officer, DRT
are annexed hereto and collectively marked with Annexure "A".
(d) In an appeal filed by the defendant no.2 along with the original defendant no.1 the
Hon'ble DRT duly passed an order directing to the appellants therein to deposit a sum of
Rs. 65.00 Lakhs. Pursuant to subsequent orders a further sum of Rs. 35.00 Lakhs was
directed to be deposited and the sale proceed in respect of the said flats were stayed. I
have deposited the said sums pursuant to the said orders. Orders passed by the Hon'ble
DART are annexed hereto and collectively marked with Annexure "C".”
10. In paragraph 14 of the affidavit of evidence filed by him he has asserted as follows:-
“14. I have specifically stated in my Additional Written Statement that Flat No 3A was
mortgaged to Punjab National Bank and Flat No. 3B was mortgaged with Indian Bank
against credit facilities advanced by the Bank. Recovery proceedings were initiated by
both the banks in view of failure to pay the Bank dues. Plaintiff no. 1 had on several
occasions requested the Bank to sell the residential flat of the Kejriwal family, which is the
suit property in the instant partition suit, to pay off the Bank liability, one such is the
affidavit dated 22.11.2005 filed by plaintiff No.1 himself. Ramesh Kejriwal had made an
affidavit before the DRT granting his consent to Bank to sell the suit property. Ramesh
Kejriwal had filed pleadings before Debt Recovery Tribunal in Appeal No.416 of 2013
consenting to Bank selling the suit property to satisfy the debt. I have been served with the
said affidavit of Ramesh Kejriwal. This document of Ramesh Kejriwal is also part of
probate proceeding before Hon'ble High Court, Calcutta in the Goods of Late Murari Mohan
Kejriwal, which is filed by me as the Sole Executor. The same be marked as an Exhibit. In
order to save the suit property from being taken over by the Bank and put in auction, I had
paid a total sum of Rs. 1,29,75,510.00 to the mortgagee banks. A sum of Rs. 1 Crore was
paid to Punjab National Bank or ARCIL and a sum of Rs.29,75,510.00 was paid to Indian
Bank. The payments were made by me from my personal bank account or through my
Page 15 of 20
C.O. 41 OF 2026
company namely Parijat Vyapar Private Limited. The payments were made by way of
Demand Drafts in favour of Banks or DRT. There are several Orders passed by Debts
Recovery Tribunal and Debts Recovery Appellate Tribunal recording the payments which
have been made by me from time to time amounting to Rs. 1,29,75,510.00. Neither Dr. V.
K. Kejriwal nor Ramesh Kejriwal paid any money to the bank to save the suit property.
Though the entire dues have been paid off, the Banks did not issue NOC. The title deeds of
the suit property are still with bank. All legal expenses, lawyers' fees to contest the banks
proceedings before DRT and DRAT have been paid by me alone. Neither Dr. V. K. Kejriwal
nor Ramesh Kejriwal paid any money towards Banks debt or towards advocates legal
fees. These are all true and correct copies of the original. The photocopies were done in my
presence and under my supervision. Ramesh Kejriwal is also a party to such DRT end
DRAT proceedings. He is well aware of the money paid by me to Bank to save the suit
property. Some of the orders are annexed with my additional written statement. Orders
passed by DRT and DRAT and letters issued by my advocate, copies of the Pay Order
showing payment of bank debt end bank statements showing payments made by me to
bank be marked as Exhibit.”
11. Thus the positive case run by the petitioner in the written statement and the
additional written statement filed by him was only with respect to the deposits
which he allegedly made in order to save the mortgaged property from being sold
and he had led evidence in support thereof. It was on such basis that the
questions, which were noted by the learned Trial Court while passing the
preliminary decree, arose and the learned Trial Court postponed decision thereon
to the final decree stage. This Court hastens to add that it is not this Court’s
conclusion that the petitioner had/has proved his claims as regards deposits being
made or mortgage being redeemed. All that is being said is that questions
pertaining thereto had arisen for consideration of the Court.
12. However, when the petitioner took out the application under Section 151 of the
Code he included within it a multitude of claims extending beyond those that were
there in the written statement and the additional written statement. In addition to
the claim in respect of mortgage debt allegedly paid by him he sought to assert that
he had incurred expenses on account of electricity bills, municipal taxes and
maintenance expenses as well. By the said application, the petitioner sought for
determination of the amounts payable to him by the plaintiffs and the defendant
no.3 upon projecting before the Court, a larger picture of claims than was there in
the pleadings.
13. It is, noted that in paragraphs 10, 11, 12 and 13 of the affidavit of evidence filed by
the petitioner he has made statements regarding the expenses incurred by him on
account of electricity bills, municipal taxes and maintenance but the same, in the
considered opinion of the Court, cannot be taken note of in the present proceedings
for at least two reasons.
Page 16 of 20
C.O. 41 OF 2026
14. Firstly, since there is no pleading either in the written statement or in the
additional written statement as regards the expenses incurred by him on account
of electricity bills, municipal taxes and maintenance, no evidence on such score
can be taken into consideration by the Court. It is well settled that no amount of
evidence, on a plea that is not put forward in the pleadings, can be looked into to
10
grant any relief.
15. Secondly, it needs to be noted that the learned Trial Court is at the final decree
stage. While passing the preliminary decree the learned Trial Court left only the
questions regarding mortgage and payment of mortgage debt (as already quoted
hereinabove) open for adjudication at the final decree stage and nothing else. This
clearly denotes that the unpleaded claims were left out of the zone of consideration
and adjudication. Since the contours have been drawn by the preliminary decree,
there is no scope for the Court to travel beyond the same at the final decree stage.
16. The contesting opposite parties are correct in their submission that most of the
claims made in the suit filed before this Court on its original side and the ones
stated in the Section 151 application filed before the learned Trial Court overlap
but all the claims don’t overlap. The learned Trial Court has still, dismissed the
petitioner’s application by observing thus:-
“Upon hearing both sides mindfully and having been gone through all the documents
relief and referred by the LD. Advocate for both sides meticulously and on taking note of
the admitted position of fact that defendant No.2 has already submitted himself to the
original jurisdiction of the Ld. Hon'ble High Court to get relief pertaining to the claim of
financial expenditures incurred towards redemption of mortgage of the suit property also
with other liabilities so there is no legal scope to knock the door of the Court of law seeking
similar nature of reliefs which is in the absence of any other findings as to the contrary is
pending for adjudication before the Hon'ble High Court.
Moreover this Court is also of the considerable opinion that here in this case nowhere
from the materials on record referred and relied upon by defendant No.2 it is being
revealed that the matter of such claim as made at the stage preferring Section 151 of CPC
application has either been raised before the Hon'ble High Court in appeal or the concerned
defendant has obtained liberty to proceed with the instant matter before this Court.
Thus, on overall consideration of the entire scenario, this Court is of the considerable
opinion that the application preferred on behalf of defendant No.2 is not tenable in the eye
of law under the present scenario and in the background facts and circumstances of the
case unless liberty is obtained from the Hon'ble High Court to proceed with the matter
before this Court where facts remain that the concerned applicant/defendant has already
submitted himself to the jurisdiction of the Hon'ble High Court pertaining to the claim in
question for adjudication by filing a suit.”
10
Bachhaj Nahar vs. Nilima Mandal, (2008) 17 SCC 491
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C.O. 41 OF 2026
17. The said observation is not sound. While a portion of the claims made by the
petitioner are indeed common to the claims made in the suit filed before this Court,
all the claims are not. To be specific, the claim on account of payment of mortgage
debt did not overlap with the reliefs claimed in the suit.
18. In the application under Section 151 of the Code, the petitioner has claimed
subrogation while alleging that he has redeemed the mortgage. The opposite parties
have disputed such claim and have sought to demonstrate that the petitioner has
not redeemed the mortgage and for such purpose various statements made by the
petitioner to the effect that the property still stands mortgaged, have been relied on.
The petitioner, on the other hand, has asserted that the Banks have not released
the title deeds despite payment of the mortgage debt. He has relied on two gift
deeds executed by the opposite party no.1 in favour of the opposite party no.2
where the former has stated that entire debt of the banks has been paid off.
19. It may be so that the mortgage debt has been discharged and yet the banks are not
returning the title deeds for some other reason. It may also be so that the mortgage
debt has not yet been discharged. The issue as to whether mortgage debt has been
paid or not and as to whether the petitioner has paid the same or not would be
required to be decided by the learned Trial Court on the basis of the evidence on
record. It cannot be left undecided.
20. There is another way to look at the matter. Even if it is assumed that the mortgage
has not yet been redeemed I full and only a portion of the mortgage debt has been
paid, then also, while the petitioner will not be entitled to subrogation under
Section 92 of the Transfer of Property Act, 1882, he is nonetheless entitled in law
and equity to a proportionate contribution and equitable adjustment of the
amounts paid by him toward the liquidation of the common mortgage debt in
respect of the joint property, provided he proves that he has made the payments as
he asserts. The issue therefore needs to be gone into by the learned Trial Court. In
such context the following observations of the Hon’ble Supreme Court in the case of
Ganeshi Lal (supra) judgment are relevant for the present purpose :-
“ 12. To compel the co-debtors or co-mortgagors to pay more than their share of what
was paid to the creditor or mortgagee would be to perpetrate an inequity or injustice, as it
would mean that the debtor who is in a position to pay and pays up can obtain an
advantage for himself over the other joint debtors. Such a result will not be countenanced
by equity; the favouritism shown by law to a surety, high as it is, does not extend so far.
The surety can ask to be indemnified for his loss : he can invoke the doctrine of
subrogation as an aid to his right of contribution. Sheldon says in Section 105 of his book:
“The subrogation of a surety will not be carried further than is necessary for his
indemnity; if he buys up the security at a discount, or makes his payment in a depreciated
Page 18 of 20
C.O. 41 OF 2026
currency, he can enforce it only for what it cost him. He cannot speculate at the expense of
his principal; his only right is to be repaid.”
(Emphasis supplied)
21. The observations indicate that a court decreeing partition should to adjust equities
so that non-paying co-sharers do not take their shares free of the burden
discharged on their behalf.
22. As regards the opposite parties assertions that petitioner’s claim cannot be
considered at all since he had filed a counter claim in an arbitration proceeding
filed by the opposite party no.4, and not proceeded with it, this Court is not
satisfied with the same. The arbitration proceedings were abandoned by the
claimant. It is well settled that the scheme of the Arbitration and Conciliation Act,
1996 considers claims and counter-claims to be independent proceedings since the
11
latter is not contingent upon the former . It was therefore, open to the petitioner to
pursue its counter claim independently and abandonment thereof by the petitioner
would bar the petitioner from raising the same claims once again in terms of the
provisions of Order 23 Rule 1 of the Code. However, the same would not inhibit the
present enquiry by the learned Trial Court in a partition suit where ascertainment
of mutual accounts is a condition precedent to the division of the joint property and
all the more so when the petitioner has asserted a claim for subrogation, which
could not have been made in the arbitration proceedings. It is not equivalent to a
stand-alone money claim. For the same reason the opposite parties’ submission
that the petitioner should file separate money claim or money suit is also not
acceptable.
23. In Krishna Pillai Rajasekharan Nair (Dead) by LRS. (supra), it was held that a
property subject to mortgage is available, as between co-mortgagors, for partition, of
course, subject to adjustment for the burden on the property.
24. In the case of Valliamma Champaka Pillai (supra) it was held that a redeeming
co-mortgagor was, in equity, entitled to be subrogated to the rights of the
mortgagee and to treat the non-redeeming co-mortgagor as his mortgagor to the
extent of the latter’s portion or share in the hypotheca and to hold that portion or
share as security for the excess payment made by him.
25. In Gurdeo Singh & Others (supra), this Court has held that in order to redeem
the mortgage, the entirety of the mortgage money has to be paid.
11
Harshbir Singh Pannu vs. Jaswinder Singh, 2025 SCC OnLine SC 2742
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C.O. 41 OF 2026
26. In Variavan Saraswathi & Another (supra) it was held that a person, who
redeems the mortgage, would have rights akin to a mortgagee. He would have the
rights “as a mortgagee”, not rights “of mortgagee”.
27. The aforesaid judgments would be relevant at the time of decision by the learned
Trial Court on the issues that it had postponed to be taken up at the final decree
stage and not at the present stage when learned Trial Court is yet to adjudicate
upon the said issues.
28. Surya Dev Rai (supra) provides that the High Court would be justified in
exercising supervisory jurisdiction when the subordinate Court has assumed a
jurisdiction which it does not have or has failed to exercise a jurisdiction which it
does have or the jurisdiction though available is being exercised by the Court in a
manner not permitted by law and failure of justice or grave injustice has
occasioned thereby. In the present case the learned Trial Court has by not deciding
the questions postponed by it for decision at the final decree stage failed to exercise
jurisdiction it had/has. The learned Trial Court has rendered a perverse finding by
holding that the petitioner has submitted himself to the original jurisdiction of the
High Court to get relief pertaining to the claim of redemption of the mortgage of the
suit property.
29. For all the reasons aforesaid, the order impugned is set aside and the matter is
remanded for fresh decision by the learned Trial Court only on the questions
regarding payment of mortgage debt (as observed by it while passing the
preliminary decree), in accordance with law and not on the other aspect regarding
expenses on maintenance, property tax and electricity dues. The learned Trial
Court is requested to render a decision on the said issues within a month from the
date of communication of this order and proceed to pass appropriate final decree,
in accordance with law. Both the parties will be at liberty to pray for preponement
of the date before the learned Trial Court in case the date is far away.
30. It is clarified that this Court has not expressed any opinion on the merits of the
petitioner’s claim and the objections of the opposite parties as regards the
questions to be decided by the learned Trial Court in terms of the above directions
and the decision of the learned Trial Court would be wholly independent.
31. C.O. 41 of 2026 along with application stands disposed of with the above
observations. No costs. Urgent photostat certified copy of this judgment, if applied
for, be supplied to the parties on urgent basis after completion of necessary
formalities.
(Om Narayan Rai, J.)
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