Decided on July 21,1952



Mack - (1.) TWO civil miscellaneous appeals and two civil revision petitions have been filed. It is stated, by way of abundant caution by the third defendant in a suit on a mortgage, although it would appear that he has no longer any, right in the subject matter of the litigation. The short facts are these: The first defendant in the suit who was the father of the second and third defendants mortgaged a house to the plaintiff who filed a suit against the father, the two sons and some prior and subsequent mortgagees. A preliminary decree was passed in the suit on 14-31936. The father of the first defendant was then adjudicated an insolvent on 2712- 1936 and after notice to the Official Receiver, the plaintiff in the suit was appointed Receiver from 22-1-1937. The Official Receiver sold the properties subject to the mortgage and it was purchased in auction by one Srinivasan who did not obtain any sale deed from the Official Receiver till 14-12-1945. The third defendant then in 1947 filed I. A. No. 183 of 1947 and I. A. No. 184 of 1947 with prayers for the removal of the plaintiff from the Receivership and, also for the rendition by her of accounts. In the meantime, in 1943 the plaintiff had assigned her decree to one Sundaram Chetti, impleaded as a respondent in these appeals and revision petitions. The learned Subordinate Judge dismissed both these I. As. holding, it would appear to me quite rightly, that the. third defendant had no longer any interest in the subject matter of the litigation. The learned District Judge confirmed the order of dismissal, and went, it appears to me somewhat irrelevantly, into the question of granting of permission to the third defendant to file a suit against this Receiver. He came to the conclusion that there were no grounds why the third defendant should be permitted to invoke the aid of the Court or why he should be given permission to file any suit. I am satisfied that the dismissal of the applications by both the learned Subordinate Judge and the. District Judge in appeal, though for different reasonings, is correct and I can see no substance in these second appeals and civil revision petitions.
(2.) THE practice of filing second appeals and civil revision petitions in the alternative by way of abundant caution must be deprecated. THE procedure adopted suggests in itself a good deal of doubt as to the maintainability of either and a lack of faith in the remedy which is sought to be pursued. THE further danger is that these appeals and civil revision- petitions in the alternative would expose themselves to dismissal with separate sets, of costs. I do not propose to adopt that extreme step in the present case and dismiss both the civil miscellaneous second appeals and civil revision petitions with costs of the respondent Sundaram Chetti who alone contests and with one advocate's, fee of Rs. 75 on all the four.;

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