PARWATI KUER Vs. MANNA LAL KHETAN

JUDGEMENT

(1.) In the suit which is the subject matter of this appeal, the plaintiffs claimed that they were entitled to recover a sum of Rs. 5,291/- and odd with interest by sale of the mortgaged properties described in Schedule 2 of the plaint. According to the case of the plaintiffs, the defendants first party had mortgaged the properties mentioned in Schedule 2 of the plaint to Suraj Prasad Sah, defendant fifth party, on 4-10-1926. The due date for payment In this mortgage bond was 16-5-1927. On the basis of this mortgage bond, Suraj Prasad Shah instituted Mortgage Suit No. 15 of 1939 against defendants first to fourth parties on 18-4-1939 for realisation of his dues. On 30-4-1940, Suraj Prasad Sah obtained a preliminary decree for sale, and on 9-12-1941; the preliminary decree was made final. Defendant 14 had purchased a portion of the mortgaged properties in auction sales held on 4-5-1931 and 7-11-1932, and thereafter defendant 14 sold her interest in the mortgaged properties to the plaintiffs by two registered sale deeds both dated 29-12-1943. After obtaining the decree in Mortgage Suit No. 15 of 1939, the defendant fifth party put the decree into execution and in that execution case (Execution Case No. 66 of 1942) the mortgaged properties were auctioned by the Court and Jainarain Prasad, defendant 13, purchased the mortgaged properties. After the sale, the plaintiffs made the deposit of a sum of Rs. 5,291-5-6 which represented the amount for which properties were sold and the statutory compensation under the provisions of Order 21, Rule 89, Civil P. C., After the deposit was made, the Court set aside the sale of the mortgaged properties. The plaintiffs therefore claimed that by deposit, of the decretal amount in Mortgage Suit No. 15 of 1939, they had acquired by subrogation the rights of the prior mortgagee on the basis of the mortgage bond dated 4-10-1926. The plaintiffs prayed that a mortgage decree should be granted for a sum of Rs. 5,291-5-6 together with interest with regard to the property described in Schedule 2 of the plaint. The plaintiffs claimed a total amount of Rs. 6,071-8-6 and prayed that a mortgage decree should be passed. The suit was contested by defendants 11 to 13 on two grounds. It was urged in the first place that the suit was barred by limitation under Article 132, Limitation Act, and secondly, that the plaintiffs had not been subrogated to the rights of the prior mortgagee, namely, the defendant fifth party. On both these issues the learned Subordinate Judge decided in favour of the plaintiffs and granted a preliminary mortgage decree for the total amount of Rs. 6,071-8-6 together with interest.

(2.) An appeal was presented to the High Court on 12-9-1947 on behalf of defendants 11 to 13 against the preliminary decree granted by the Subordinate Judge. There was a discrepancy in the name of appellant 3, who was described as Jainarain Ram in the memorandum of appeal and as Jainarain Prasad defendant 13 in the trial Court decree. On 8-4-1948, there was an order of the Bench that the discrepancy should be reconciled, and as the order was not complied with, the name of appellant 3, namely, defendant 13, stood expunged from the memorandum of appeal.

(3.) The appeal was heard in the first instance before a Bench consisting of Rai and Choudhary JJ. A preliminary objection was taken on behalf of the plaintiff respondents that the appeal was incompetent since defendant 13 had been expunged from the category of appellants, and the preliminary decree for sale granted by the lower Court had become final so far as defendant 13 was concerned. It was contended that the remaining appellants, namely defendants 11 and 12, were not entitled to seek relief under the provisions of Order 41, Rule 4, Civil P. C. in the absence of defendant 13 from the records of the appeal.