Full Judgment Text
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PETITIONER:
Sm. SAILA BALA DASSI
Vs.
RESPONDENT:
SM. NIRMALA SUNDARI DASSI AND ANOTHER
DATE OF JUDGMENT:
14/02/1958
BENCH:
AIYYAR, T.L. VENKATARAMA
BENCH:
AIYYAR, T.L. VENKATARAMA
DAS, SUDHI RANJAN (CJ)
SARKAR, A.K.
BOSE, VIVIAN
CITATION:
1958 AIR 394 1958 SCR 1287
ACT:
Civil Procedure-Addition of Party-Tran sfer Pendente lite-
Appeal filed by tyansferor-Right of transferee to continue
appealCode of Civil Proceduye (Act 5 of 908), s. 146, 0. 22,
Y. IO.
HEADNOTE:
The second respondent sold the properties to the appellant
in ,952 and the deed of sale recited that the properties
were sold free of all encumbrances. The first respondent
who had obtained a mortgage decree in respect of the
properties in 1935 did not take any steps to have the decree
drawn up as required under the Original Side Rules of the
Calcutta High Court until 1954, when she commenced
proceedings for sale of the mortgaged properties. The
second respondent raised the objection that the execution of
the decree was barred by limitation but that was overruled
by a single judge of the High Court and an appeal against
that order was preferred by the second respondent.
Apprehending that the second respondent might enter into a
collusive arrangement with the first respondent with a view
to defeat her rights, the appellant made an application in
the High Court under 0. 22, r. 10 of the Code of Civil
Procedure praying that she might be substituted in the place
of the second respondent, or in the alternative, be brought
on record as additional appellant. The High Court having
dismissed the application, the appellant brought the present
appeal:
Held, that the application could not be sustained under 0.
22, r.10, of the Code of Civil Procedure because (i)
assuming that
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the suit was considered as having been pending until the
decree was drawn up in 954 no application was made to the
Court where the suit was pending as provided in 0. 22, r.
10, and (ii) the application made to the appellate Court was
also not within 0. 22, r. 10, as the transfer in question
was made prior to the filing of the appeal and not during
its pendency.
The application, however, falls within s. I46 of the Code of
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Civil Procedure and the appellant is entitled to be brought
on record since an appeal is a proceeding within the meaning
of that section and the right to file an appeal carries with
it the right to continue an appeal which had been filed by
the person under whom the appellant claims.
Jugalkishore Sayaf v. Raw Cotton Ltd., [1955] I S.C.R. 1369,
Sitharamaswami v. Lakshmi Narasimha, (1918) I.L.R. 41 Mad.
51O and Muthia Chettiar v. Govinddoss Kyishnadoss, (1921)
I.L.R. 44 Mad. gig, relied on.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.350 of 1957.
Appeal by special leave from the judgment and order dated
August 6, 1956, of the Calcutta High Court on a notice of
motion in Appeal No. 152 of 1955.
N. C. Chatterjee and P. K. Mukherjee, for the appellant.
B. Sen and P. K. Ghosh (for P. K. Bose), for respondent No.
1.
1958. February 14. The Judgment of the Court was delivered
by
VENICATARAMA AIYAR J.-This is an appeal against an order of
the High Court of Calcutta dated August 6, 1956, rejecting
the application of the appellant to be brought on record as
appellant in appeal No. 152 of 1955 pending before it.
The second respondent, Sudhir Kumar Mitter, was the owner of
two houses, No. 86/1, Cornwallis Street and No. 7-C, Kirti
Mitter Lane, Calcutta. On May 19, 1934, he executed a
mortgage for Rs. 3,000 over the said houses in favour of the
first respondent, Sm. Nirmala Sundari Dassi. She instituted
Suit No. 158 of 1935 on this mortgage, and obtained a pre-
liminary decree on March 8, 1935. The matter then came
before the Registrar for taking of accounts, and by his
report dated July 23, 1935 he found that a sum
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of Rs. 3,914-6-6 was due to her, and on that, a final decree
was passed on April 20, 1936. Under r. 27 of ch. 16 of the
Original Side Rules of the Calcutta High Court, a person in
whose favour a decree is passed has to apply for drawing up
of the decree within four days from the date thereof. The
rule then provides that " if such application for drawing up
a decree or order is not made within the time aforesaid, the
decree or order,shall not be drawn up except under order of
Court or a Judge to be obtained, unless otherwise ordered,
by a petition ex parte ". The importance of this provision
is that until a decree is drawn up as mentioned therein, no
certified copy thereof would be issued to the party and
without such a certified copy, no execution proceedings
could be taken.
The first respondent who had acted with such alacrity and
speed in putting her mortgage in suit and obtaining a
decree, took no steps whatsoever to have the decree drawn
up, for nearly 18 years. On May 12, 1952, the second
respondent sold both the houses to the appellant herein for
a sum of Rs. 60,000 which was, it is stated, utilised
largely for discharging prior mortgages on which decrees had
been obtained and execution proceedings taken. The deed of
sale recites that the properties were sold free of all
encumbrances. The first respondent who had so far taken no
steps to have the decree drawn up now bestirred herself, and
on February 17, 1954 obtained an ex parte order under r. 27
aforesaid, granting her leave to draw up and complete the
decree. That having been done pursuant to the order, she
filed on April 29, 1954 the final decree, and commenced
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proceedings for sale of the mortgaged properties.
Coming to know of this, the second respondent appeared
before the Registrar, and raised the objection that the
execution of the decree was barred by limitation. The
Registrar felt some doubt in the matter, and made a special
report under ch. 26, r. 50 seeking the opinion of the Court
on the question of limitation, and the first respondent was
also directed to take out a notice of motion for directions.
The matter then came before P. B. Mukharji J. and after
hearing
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counsel for both the respondents, he held that the execution
of the decree was not barred. Vide judgment reported in
Nirmala Sundari v. Sudhir Kumar (1). Against this judgment,
the second respondent preferred Appeal No. 152 of 1955, and
that is still pending.
We now come to the application, out of which the present
appeal arises. On July 25, 1956 the appellant applied to be
brought on record as appellant in Appeal No. 152 of 1955.
The allegations in support of the petition were that she had
purchased the properties from the second respondent on May
12, 1952 free of all encumbrances, that the execution
proceedings started by the first respondent were not
maintainable as the decree had become time-barred, that the
second respondent, Sudhir Kumar Mitter, had been conducting
proceedings in opposition to the execution sale only at her
instance and for her benefit, that he had filed Appeal No.
152 of 1955 also oil her behalf, that latterly he had
entered into a collusive arrangement with the first
respondent with a view to defeat her rights, and that
therefore it was necessary that she should be allowed to
come on record as appellant so that she might protect her
interests. The prayer in the petition was that she be
substituted in the place of the second respondent or in the
alternative, be brought on record as additional appellant.
The application was strenuously opposed by both the
respondents. They stated that they had entered into an
arrangement settling the amount due to the first respondent
at Rs. 17,670, that that settlement was fair and bona fide
and binding on the appellant, and that further her
application was not maintainable. This application was
heard by Chakravarti C. J. and Lahiri J. and by their order
dated August 6, 1956, they dismissed it. The appellant then
applied under Art. 133 for leave to appeal to this Court,
and in rejecting that application, the learned Chief Justice
observed that the original application was pressed only
under 0. 22, r. 10 of the Civil Procedure Code and it was
dismissed, as it was conceded that the applicant,
(1) A.I.R. 1955 Cal. 484.
1291
not being a person who had obtained a transfer pending
appeal, was not entitled to apply on the terms of that rule,
that the prayer in the alternative that the applicant might
be brought on record without being substituted under 0. 22,
r. 10 which merited favourable consideration bad not been
mentioned at the previous hearing, and that no certificate
could be granted under Art. 133 with a view to that point
being raised in appeal, as the order sought to be appealed
against was not a final order. The appellant thereafter
obtained special leave to appeal under Art. 136 of the
Constitution, and that is how the appeal comes before us.
It is contended OD behalf of the appellant that her
application is maintainable under 0. 22, r. 10 of the Civil
Procedure Code, because Suit No. 158 of 1935 must be
considered to have been pending until the decree therein was
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drawn up which was in 1954, and the transfer in her favour
had been made prior thereto on May 12, 1952. The decision
in Lakshan Chunder Dey v. Sm. Nikunjamani Dassi (1) is
relied on, in support of this position. But it is contended
for the first respondent that even if Suit No. 158 of 1935
is considered as pending when the transfer in favour of the
appellant was made, that would not affect the result as no
application had been made by her to be brought on record in
the original court during the pendency of the suit. Nor
could the application made to the appellate Court be
sustained under 0. 22, r. 10, as the transfer in favour of
the appellant was made prior to the filing of that appeal
and not during its pendency. This contention appears to be
well-founded ; but that, however, does not conclude the
matter. In our opinion, the application filed by the
appellant falls within s. 146 of the Civil Procedure Code,
and she is entitled to be brought on record under that
section. Section 146 provides that save as otherwise
provided by the Code, any proceeding which can be taken by a
person may also be taken by any person claiming under him.
It has been held in Sitharamaswami v. Lakshmi Narasimha (2)
that an appeal is a proceeding for the
(1) (1923) 27 C.W.N. 755.
164
(2) (1918) I.L.R. 41 Mad. 510.
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purpose of this section, and that further the expression "
claiming under" is wide enough to include cases of
devolution and assignment mentioned in 0. 22, r. 10. This
decision was quoted with approval by this Court in
Jugalkishore Saraf v. Raw Cotton Co., Ltd. (1), wherein it
was hold that a transferee of a debt on which a suit was
pending was entitled to execute the decree which was
subsequently passed therein, under s. 146 of the Civil
Procedure Code as a person claiming under the decree-holder,
even though an application for execution by him would not
lie under 0. 21, r. 16, and it was further observed that the
words "save as otherwise provided " only barred proceedings,
which would be obnoxious to some provision of the Code. It
would follow from the above authorities that whoever is
entitled to be but has not been brought oil record under 0.
22, r. 10 in a pending suit or proceeding would be entitled
to prefer an appeal against the decree or order passed
therein if his assignor could have filed such an appeal,
there being no prohibition against it in the Code, and that
accordingly the appellant as an assignee of the second
respondent of the mortgaged properties would have been
entitled to prefer an appeal against the judgment of P. B.
Mukharji J.
It is next contended that s. 146 authorises only the
initiation of any proceeding, and that though it would have
been competent to the appellant to have preferred an appeal
against the judoment of P. B. Mukharji J. she not having
done so was not entitled to be brought on record as an
appellant to continue the appeal preferred by the second
respondent. We are not disposed to construe s. 146 narrowly
in the manner contended for by counsel for the first
respondent. That section was introduced for the first time
in the Civil Procedure Code, 1908 with the object of
facilitating the exercise of rights by persons in whom they
come to be vested by devolution or assignment, and being a
beneficent provision should be construed liberally and so as
to advance justice and not in a restricted or technical
sense. It has been held by a Full Bench of the Madras High
Court in Muthiah Chettiar v. Oovinddoss Krishnadass (2) that
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the assignee of a part of a
(1) [1955] i S.C.R. 1369.
(2) (1921) I.L.R. 44 Mad. 919.
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decree is entitled to continue an execution application
filed by the transferor-decree-holder. Vide also Moidin
Kutty v. Doraiswami (1). The right to file an appeal must
therefore be held to carry with it the right to continue an
appeal which had been filed by the person under whom the
applicant claims, and the petition of the appellant to be
brought on record as an appellant in Appeal No. 152 of 1955
must be held to be main. tainable under s. 146.
It remains to consider whether, on the merits, there should
be an order in favour of the appellant. Of that, we have no
doubt whatsoever. The proceedings in which she seeks to
intervene arise in execution of a mortgage decree. She has
purchased the properties comprised in the decree for Rs.
60,000 under a covenant that they are free from
encumbrances. And after her purchase, the first respondent
has started proceedings for sale of the properties, nearly
18 years after the decree had been passed. The appellant
maintains that the execution proceedings are barred by
limitation, and desires to be heard on that question. It is
true that P. B. Mukharji J. has rejected this contention,
but a reading of his judgment shows-and that is what he
himself observes-that there are substantial questions of law
calling for decision. Even apart from the plea of
limitation, there is also a question as to the amount
payable in discharge and satisfaction of the decree obtained
by the first respondent in Suit No. 158 of 1935. Both the
respondents claim that they have settled it at Rs. 17,670.
But it is stated for the appellant that under the decree
which is sought to be executed the amount recoverable for
principal and interest will not exceed Rs. 6,000. In the
affidavit of Sanjit Kumar Ghose dated December 20, 1956,
filed on behalf of the first respondent, particulars are
given as to how the sum of Rs. 17,670 was made up. It will
be seen therefrom that a sum of Rs. 7,200 is claimed for
interest up to March 8, 1956, calculating it not at the rate
provided in the final decree but at the contract rate. Then
a sum of Rs. 5,000 is included as for costs incurred by the
mortgagee in suits other than
(1) I.L.R. 1952 Mad. 622.
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Suit No. 158 of 1935 and in proceedings connected therewith.
The appellant contends that the properties in her hands
could, under no circumstances, be made liable for this
amount. A sum of Rs. 1,750 is agreed to be paid for costs
in the sale reference, in the proceedings before P. B.
Mukharji J. and in Appeal No. 152 of 1955. Asks the
appellant, where is the settlement in this, and how can it
bind me ? It is obvious that there are several substantial
questions arising for determination in which the appellant
as purchaser of the properties is vitally interested, and
indeed is the only person interested. As a purchaser
pendente lite, she will be bound by the proceedings taken by
the first respondent in execution of her decree, and justice
requires that she should be given an opportunity to protect
her rights.
We accordingly set aside the order of the Court below dated
August 6, 1956 and direct that the appellant be brought on
record as additional appellant in Appeal No. 152 of 1955.
As Sudhir Kumar Mitter, the appellant now on record, has
dropped the fight with the first respondent, we conceive
that no embarrassment will result in there being on record
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two appellants with Conflicting interest. But, in any
event, the Court can, if necessary, take action suo motu
either under 0. 1, r. 10 or in its inherent jurisdiction and
transpose Sudhir Kumar Mitter as second respondent in the
appeal, as was done in In re Mathews. Oates v. Mooney (1),
and Vanjiappa Goundan v. Annamalai Chettiar (2 ). As for
costs, the appellant should, in terms of the order of this
Court granting her leave to appeal, pay the contesting
respondent her costs in this appeal. The costs of and
incidental to the application in Appeal No. 152 of 1955 in
the High Court will abide the result of that appeal.
Appeal allowed.
(1) (1905) 2 Ch. 460. (2) (1939) 2 M.L.J. 551.
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