Authority: High Court at Calcutta (Civil Revision Jurisdiction – Appellate Side)

Order Date: 13 November 2026

Case Overview

  • Petitioner: Mahesh Kaumar Kejriwal (defendant No. 2 in the partition suit).
  • Opposite Parties: Dr. Vijay Kumar Kejriwal and others (plaintiffs/opposite parties No. 1, 2, 4).
  • Original Suit: Title Suit No. 2778 of 2010 (later renumbered Title Suit No. 27 of 2023) filed by opposite party 1 for partition, permanent injunction and accounts of the properties listed in the First Schedule (Flats 3A and 3B at 57G, Ballygunge Circular Road, Kolkata).
  • Key Procedural History:
  • Preliminary decree passed on 24 March 2025; appealed and modified on 10 September 2025 by a Division Bench, extending the share declaration to both flats.
  • Advocate Commissioner appointed on 10 November 2025 for partition by metes and bounds.
  • Petitioner filed a Section 151 CPC application (C.O. 41 of 2026) seeking determination of amounts payable by plaintiffs and defendant 3 for mortgage redemption and related expenses, asserting a right of sub‑rogation.
  • The trial court rejected the Section 151 application on 22 December 2025, holding the claim beyond pleadings and already pending before the High Court.
  • Financial Claims Made by Petitioner:
  • Alleged payment of Rs 1,29,75,510 (Rs 1 crore to Punjab National Bank/ARCIL and Rs 29,75,510 to Indian Bank) by demand draft to save the mortgaged flats.
  • Claims for property tax, electricity, maintenance, and legal expenses amounting to Rs 20,00,000 (to Indian Bank) and Rs 9,77,510 (to Indian Bank) among others, detailed in paragraphs 11(a)‑(h) of the Section 151 application.
  • Opposite Parties’ Contentions:
  • The mortgage remained unredeemed; no No‑Objection Certificate (NOC) was issued, and the property continued to be mortgaged.
  • The petitioner’s claim was a counter‑claim not raised in the appeal against the preliminary decree and therefore barred.
  • All the monetary claims had already been raised in C.S. No. 377 of 2013 and in an arbitration proceeding (APO 381 of 2011), which were pending or abandoned.
  • Judicial Observations Cited:
  • Supreme Court judgments on sub‑rogation (Ganeshi Lal vs Joti Pershad; Valliamma Champaka Pillai vs Sivathanu Pillai; Krishna Pillai Rajasekharan Nair vs Padmanabha Pillai).
  • Principles that a redeeming co‑mortgagor is entitled to equitable contribution but not full mortgagee rights unless the entire debt is discharged (Gurdeo Singh vs Chandrikah Singh; Variavan Saraswathi vs Eachampi Thevi).
  • The High Court’s supervisory jurisdiction under Article 227 (Surya Dev Rai vs Ram Chander Rai).

Final Outcome

  • The High Court set aside the trial court’s order dated 22 December 2025 rejecting the Section 151 application.
  • The matter is remanded to the trial court to decide only the questions relating to the payment of mortgage debt and the petitioner’s claim of sub‑rogation, as those were expressly left for determination at the final decree stage.
  • The trial court is directed to render its decision within one month of receipt of this order; parties may seek an earlier date if required.
  • No costs are awarded to either side.
  • The Court expressly did not express any opinion on the merits of the petitioner’s claim or the opposite parties’ objections; the fresh decision will be independent.

Topics: Partition Law, Mortgage Subrogation