Sm. Saila Bala Dassi v. Sm. Nirmala Sundari Dassi and Another

No. J.

1958. February 14. The Judgment of the Court was delivered by r •nlcataratna VENKATARAMA AIYAR J.-This is an appeal against an

Aiyar J. 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 be· fore it.

The second respondent. Sudhir Kumar Mitter, was the owner of two houses, No. 86 / l, Cornwallis Street and No. 7-C, Kirti Mitter Lane, Calcutta. On May 19, 1934, he exe· cuted.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 obtain-ed a preliminary 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 of Rs. 3,914-6-6 was due to her, and on that, a final decree was 1953• passed on April 20, 1936. Under r. 27 of ch. 16 of the Origi-Saila Bala Daaai nal Side Rules of the Calcutta High Court, a person in whose v. Nirmala Bundari favour a decree is passed has to apply for drawing up of the DtJBs' decree . within four days from the date thereof. The rule v enkatarama then provides that "if such application for drawing up a AiyarJ. 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 with-out such a certified copy, no execution proceedings could be taken.

The first respondent who had acted with such alacrity and speed in pqtting her mortage in suit and obtaining a · decr~e.

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 dis-charging prior mortgages on which decrees had been obtain-ed· 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, anci' on February 17, 1954 obtained an ex parte order under r. 27 aforesaid, grant-ing 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 proceedings for sale of the mortgaged properties.

Cqming to know of this, the second respondent appeared before the Registrar, and raised the objection that the execu-tion of tf1e 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 o~ the Court on the qu~ti9n of limitation, and the first respondent wu ~ directed to take out a notice of motion for directions.. The matter then came before P. B. Mukharji 1. and after hearing

1290 SUPREME COUR'l' REPORTS [1958]

1968 counsel for both the respondents, he held that the execution Saila Bula l>aaai of the decree was not barred. Vide judgment reported in

v. Nirmala Sundari v. Sudhir Kumar('). Against this judgment, Nirmala Sundari the second respondent preferred Appeal No. 152 of 1955,

Dassi and that is still pending.

V eW:atarama We now come to the application, out of which the

Aiyar J.

present appeal arises. On July 25, 1956 the appellant ap-plied 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 execu-tion 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 conduct-ing proceedings in opposition to the execution sale only at her instance and for her benefit, that he had filed Appeal No. 152 of 1955 aJso on her behalf, that latterly he had en-tered 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 Chakra· varti 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, not being a person who had

(') A.I.R. 1955 Cal. 484.

obtained a transfer pending appeal, was not entitled to apply 1968 on the terms of that rule, that the prayer in the alternative Saila &;;;; Daari that the applicant might be brought on record without being . . v. substituted under 0. 22, r. 10 which merited favourable N•~::;,n11a,. consideration had not been mentioned at the previous hear-Venkatarama ing, and that no certificate could be granted under Art. 133 .A.iyar J. 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 on 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 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 Ohunder Dey v. Sm. Nikunjamani Dassi(') 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 consi-dered 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 appli-cation 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, how-ever, 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 claim-ing under him. It has been held in Sitharamaswami v. Lakshmi Narasimlza(') that an appeal is a proceeding for the purpose

1292 SUPREJ'IIE COURT REPORTS [1958

1958 of this section, and that further the expression "claiming Saila Bala Dassi under" is wide enough to include cases of devolution and

v. assignment mentioned in 0. 22, r. IO. This decision was ,;._Vitt1v.tla Sundttri.

]Jass·i quoted with approval by this Court in Juga/,kishore Saraf v. r enl:atarama Raw Cotton Co., Ltd.('), wherein it was held that a transferee

Aiyar J, 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 pro-vision of the Code. It would follow from the above authori-ties that whoever is entitled to be but has not been brought on 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 ini-tiation of any proceeding, and that though it would have been competent to the appellant to have preferred an appeal against the judgment of P. B. Mukharji J. she not having done so was not entitled to be brought on record as an appel-lant to continue the appeal preferred by the second respon-dent. We are not disposed to construe s: 146 narrowly in the manner contended for by counsel for tlie first respondent. That section was introduced 'tot ·the first time in the Civil Procedure Code, 1908 with the · ·object of facilitating the exercise of rights by persons .in w)lom they come to be vested by devolution or assignment, and being a beneficent provi-sion 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. Govinddoss Krishnadoss(') that the assignee of a part of a decree is entitled to continue an execution applica· 1958 tion filed by the transferor-decree-holder. Vide also Moidin Saila Bala Da.'8i Kutty v. Doraiswamy('). The right to file an appeal must v. therefore be• held to carry . with it the right to conti,nue an N irmala S1tndari Da&"i appeal which had been filed by the person under wh(j)m the T' enlcatarama applicant claims, and the petition of the appellant to be Aiyar J. brought on record as an appellant in Appeal No. 152 of 1955 must be held to be maintainable 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 encum-brances. 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 maintatns 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 aiso a ques-tion 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· re-coverable for principal and interest will .not exceed Rs, 6,000.

In the affidavit of Sanjit Kumar Ghose dated December 20, 1956, fih:d on behalf of. the. first respondent, particufars 'are given as to how the sum of Rs. 17,670 was made·up. ·It wilt 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

(') IL,R 1952 Mac;!. 622.

1958 mortgagee in suits other than Suit No. 158 of 1935 and in 8m7a Bala l!aa8i' proceedings connected therewith. The appellant contends

v, that the properties in her hands could, under no circumstan-NirmaTa Sundari

Daasi ces, be made liable for this amount. A sum of Rs. 1,750 is Venkatarama agreed to be paid for costs in the sale reference, in the pro-

.Aiyar J. ceedings before P. B. Mukbarji J. and in Appeal No. 152 of

1955. Asks the appellant, where is the sttlement 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, bas dropped. the fight with the first respondent, we conceive that no embarrassment will result in there being on record two appellants with conflicting interest. But, in any event, the Court can, if necessary, take action suo motu either under 0. 1, r. JO 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('), and Van-jiappa Goundan v. Annamalai Chettiar('). 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. (') (1905) 2 Ch. 460. (') (1939) 2 M.L.J. 551.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 350 of 1957.

Appeal by special leave from the judgment and order dated August 6, I 956, 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