Decided on October 31,1900

SABJU SAHEB Respondents


- (1.) This was an application under Section 372 of the Civil P. C. by the Commercial Bank, the appellants, to be brought upon the record of Civil Suit No. 160 of 1895 as plaintiffs with T. Sabju Saheb, as the mortgagee from him of the subject-matter of the suit.
(2.) The application was rejected by the learned Judge, and the first question is whether an appeal lies from his order. We can find nothing on record as to the Judge's reasons for refusing the application, and as, in our opinion, it was not made too late with reference to the facts of the case we must treat the order as one disposing of the application on the merits. In that view it wag a judgment within the meaning of Art. 15 of the Letters Patent and therefore appealable.
(3.) We think the application should have been complied with, as the Bank was directly interested in the matters to be settled by the decree, and was justified in asking the Court to postpone the passing of a final decree until the matters left undetermined by the certificate were enquired into and determined. That was a reasonable request, as the certificate had in fact left matters undetermined, and the decree, subsequently passed upon the footing of the certificate, carries the final decision of the case no further. It is doubtful what the nature of that decree is, as in its terms it is not final, leaving other matters still to be adjudicated upon. Taking it, as far as it goes, to have the effect of a decree, we cannot join the Bank as a party to the suit except subject to that decree, but we are of opinion that, being so subject thereto, they should be brought on the record as co-plaintiffs, and we order accordingly. Although this will not enable them to re-open questions already settled, it will give them an opportunity of taking part in the further proceedings contemplated by the decree. We reverse the learned Judge's order as to costs relating to this application in his Court and direct that the appellants costs in this appeal be paid by the defendants Nos. 1, 4 and 5.;

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