(1.) . 1. The five applicants have applied to this Court in revision against an order of the District Judge, Chhindwara, dated 29th February 1926, in Civil Suit No. 7 of 1924. In that suit preliminary decree for foreclosure in respect of the mortgaged subjects had been passed by the District Judge on 29th July 1924. The present non-applicant, Ballabhdas, was joined as defendant 10 in the suit by virtue of his being a subsequent mortgagee of the property in suit. The preliminary decree in question was in Form 6, Appx. D, Civil P.C. The present non-applicant was given the prior right to redeem up to the 29th January 1925; in ease he failed to do so, defendants 2 to 5 and defendants 1, 6 and 7 were respectively given the right to redeem up to a further date, the 29th April 1925. Within the six months time allowed to the non-applicant he deposited in Court the decretal amount and, on 19th Januaryl925, filed an application praying that, in view of this deposit, his name should be substituted in place of those of the plaintiffs and that a final decree for foreclosure should be passed against the remaining defendants. The district Judge sanctioned the application and allowed the non-applicant's name to be substituted as a plaintiff in the case. Against this order, therefore, the present five defendants-applicants have filed the present revision.
(2.) IT has been urged on their behalf that the lower Court had no power under Order 1 Rule 10, Civil P.C., to make the transposition it did in the circumstances of the case. I have been referred to the well-known decision of their Lordships of the Privy Council in Gopi Narain Khanna v. Babu Bansidhar [1905] 27 All. 325, and it has been suggested that, on the strength of this case, the District Judge's procedure in allowing the transposition o? the nonapplicant was wrong and illegal. It has been suggested in the first instance that, in the circumstances, the final decree which followed as a result of the District Judge's order is at variance with, the preliminary decree; that the preliminary decree only directed payment by the defendants to the plaintiffs and that there was no direction inter se for foreclosure as between the defendants. In addition to the Privy Council case quoted above the applicants have relied on a decision of Banerji and Gokul Prasad, JJ., reported in Shib Lal v. Muni Lal A.I.R. 1922 All. 153 as well as on a decision of the Madras High Court reported in Kotappa v. Raghavayya A.I.R. 1927 Mad. 631. These decisions, however, seem to me hardly to the point in the present instance. At the time the transposition complained of was allowed, by the District Judge, it is clear that the mortgage suit was still pending. Them was no completed decree in the case, and the preliminary decree might be described as an inchoate one : cf. Digamber v. Ganpat [1916] 12 N.L.R. 50. The Privy Council decision quoted above was, needless to say, passed before the present Civil Procedure Code was enacted, and the considerations, on which their Lordships relied in coming to the decision they did in that case seem to me no longer to hold good. With all deference it would appear to me that, the Judges of the Madras High Court, who decided the case just quoted, ignored the fact of the all important change of procedure which had been introduced as regards the decree final in mortgage suits by the new Civil Procedure Code. The Privy Council case quoted is, in my opinion, inapposite for the simple reason that their Lordships only held therein that the subsequent mortgagees could not be substituted as decree-holders for the purpose of carrying out the execution of the decree.
(3.) FOR these reasons I am of opinion that the order of the District Judge is a correct one, and the present application is dismissed. The applicants must bear the nonapplieant's costs.