Mahesh Kaumar Kejriwal vs Dr. Vijay Kumar Kejriwal & Ors.

a. The opposite party no. 1 has instituted Title Suit No. 2778 of 2010 before the learned Civil Judge (Senior Division), 5^th 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 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.

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 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.

a. The petitioner’s application was dismissed by the impugned order on essentially two grounds - (a) the petitioner/defendant no. 2 had already 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 the amount paid by him over and above his share to discharge the common mortgage debt.

Ganeshi Lal vs. Joti Pershad^{22.(1952) 2 SCC 373});

ii) Valliamma Champaka Pillai vs. Sivathanu Pillai & Others^{33.(1979) 4 SCC 429}; and

iii) Krishna Pillai Rajasekharan Nair (Dead) by LRS. vs. Padmanabha Pillai (Dead) by LRS. & Others^{44.(2004) 12 SCC 754}

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.

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 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.

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 92 of Transfer of Property Act, 1882^{55.Hereafter ‘the 1882 Act’} 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.

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 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:-

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 petitioner cannot therefore argue or contend, having regard to his admission, that the mortgage has been redeemed. A judgment of the Hon’ble Supreme Court in the case of Bachhaj Nahar vs. Nilima Mandal^{66.(2008) 17 SCC 491} 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.

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 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.

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:-

CS No. 377 of 2013 filed before this Hon'ble Court;

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.

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:-

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 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. Chandrikah Singh & Others^{77.(1907) 5 CLJ 611} .

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”.

For such purpose the judgment in the case of Variavan Saraswathi & Another vs. Eachampi Thevi & Others ^{88.1993 Supp (2) SCC 201} 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.

jj. The Section 151 application was the 27^th 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:-

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;

The Hon’ble Supreme Court order dated December 09, 2024;

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 or of law. A judgment of the Hon’ble Apex Court in the case of Surya Dev Rai vs. Ram Chander Rai & Others^{99.(2003) 6 SCC 675} 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.

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 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.