MEHAR SINGH AND OTHERS Vs. SMT. GIANO DEVI AND OTHERS
HIGH COURT OF HIMACHAL PRADESH
MEHAR SINGH AND ORS
SMT GIANO DEVI AND ORS
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(1.) Way back, in the year 1967, a suit was filed by the present Applicants for possession of some land by redemption of a mortgage, on payment of Rs. 300 to the mortgagee The mortgagees are the Defendants While the suit was pending, two of the Defendants died. The Plaintiffs made an application to bring on record the legal representatives of the deceased mortgagees Most of the proposed heirs, sought to be impleaded in place of the deceased Defendants, were served Some, however, could not be served due, according to the Plaintiffs, to the fact that they were living at different places. The Plaintiffs were directed to file process fee, correct addresses and registered A.D. for service on the unserved legal representatives, by an order dated March 13, 1978, for April 21, 1978. The Plaintiffs failed to do so The learned Senior Sub-Judge, who was trying the suit, imposed costs of Rs. 11 upon the Plaintiffs and directed them to comply with the order of March 13, 1978. For June 20, 1978 the Plaintiffs, however, failed to comply with the order, or, even to pay the amount of costs for June 20, 1978. The suit, therefore, was dismissed by the trial Judge under Order IX, Rule 2, Code of Civil Procedure.
(2.) The Plaintiffs then filed civil miscellaneous application No. 22 of 1978 on June 24, 1978 for restoration of the suit. The application was, however, dismissed by the learned Senior Sub-Judge on November 17, 1983. Under some mistaken advice, the Plaintiffs challenged the order by filing Civil Miscellaneous Appeal No. 1 of 1984. The learned District Judge dig-posed of the appeal by holding that it was not maintainable. This was on March 18, 1985. Thereafter, the Plaintiffs came to this Court for relief by way of this revision petition.
(3.) There is no dispute between the parties that the two Defendants, who had died, had left behind a number of legal representatives, some of whom had actually been served, and it was only in respect of a few of them that steps were not taken by the Plaintiffs for service by complying with the direction in that regard made by the trial Court. The relief sought in the suit was, as noticed earlier, of possession over certain property, which had been mortgaged by the Plaintiffs or their predecessors-in-interest. The Plaintiffs were, according to the averments in the plaint, prepared to redeem the entire mortgage by payment of the mortgage security.
Order XXXIV Rule 1 requires:
1. Parties to suits for foreclosure, sale and redemption --Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage.
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