- (1.) DEVOID of all details, the facts of this case inter alia, are that one Nagarchand Goenka was the owner of the suit property. He died on 4th April, 1950 leaving the suit property and other properties and also left considerable debts. Smt. Rama Sundari Devi was appointed as the administratrix to the estate of the said Nagar Chand goenka, and was empowered to raise loan for repayment of the debts of the decessed owner, and accordingly, she created a mortgage On 4th June, 1962 in favour of Messrs. Raghunath and Son (P) Ltd. , the petitioner herein, and collected loan from the petitioner. The said administratrix did not repay the said loan nor paid the interest accrued on it, and ultimately, the petitioner filed a suit for recovery of money due by enforcement of mortgage amongst other claims against the said administratrix, Rama Sundari Devi, in the Court of the learned district Judge at Darjeeling being Title Suit No. 84 of 1976. In the said suit, an exparte preliminary decree was passed on 15th July, 1980 wherein several immovable properties of the decessed owner, Nagarchand Goenka were attached. Against the said exparte decree the said Rama Sundari Devi [filed an application under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure on 18th August, 1980 which gave rise to Misc. Case No. 55 of 1980 which is still pending. Subsequently, the said Rama. Sundari Devi died on 15th February, 1987 and the petitioner filed an application for substitution of the opposite parties herein as heirs and legal representatives of the deceased defendant on 28th April, 1987. The opposite party No. 1 herein also filed an application under Order XXII Rule 4 read with Section 5 of the Limitation act on 30th November, 1992 for substituting his name in place and stead of Rama Sundari Devi. The learned Assistant District Judge at Darjeeling, by his Order No. 155, dated 24th November, 1993 rejected the petitioner's said application for substitution, and against the said order the petitioner has moved the present revisional application.
(2.) IT appears from the impugned order that the learned Judge rejected the above application, inter alia on the ground that since the time for making application for drawing up of the final decree in the mortgage suit had long expired, inasmuch as, the period of limitation in such case would be governed by Article 137 of the Limitation Act, 1963, the application for substitution could not be said to have been filed in a pending proceeding and hence it was not maintainable.
(3.) MR. Bhattacharyya, learned counsel appearing on behalf of the petitioner, however, contends inter alia, that no period of limitation would be attracted so far as the present case is concerned, since after a preliminary decree is passed in a suit, it. is the Court's duty to make it final and whenever the decree holder applies before the Court for drawing up of a final decree, the Court cannot refuse it and till a final decree is passed, the suit would be deemed to be pending and as such, the Court below had acted with material irregularity in rejecting the petitioner's application for substitution on the ground that Article 137 of the Indian Limitation Act, 1963 would apply to the present case and that the application for substitution was not maintainable since no application was made by the plaintiff decree holder for making the preliminary decree a final one within three years from the date of passing of the preliminary decree in the year 1980, the decree had become in executable after the expiry of the said period and it could not be said that suit was still pending. Further, according to Mr, Bhattacharyya, since, the application under Order IX Rule 13 of the Code of Civil Procedure filed by the original defendant was pending, it could not be said that the suit was not pending and that the application for substitution had become (time barred. Secodnly, no period of limitation would be attracted to the facts and circumstances of the present case according to Mr. Bhattacharyya, since when a preliminary decree is passed, it decides the rights and liabilities of the parties, and as such, the question of deciding whether the right to sue survives on the death of one of the parties to the preliminary decree is redundant and not at all necessary. Thirdly, Mr. Bhattacharyya contens that after the peliminary decree is passed, the suit is not dismissed on the failure on the part of the plaintiff to take further steps in the matter, and no application is also necessary for making the preliminary decree final, as when a preliminary decree is passed, it is the Court's duty to make it final. In support of his contentions Mr. Bhattacharyya has referred to a number of decisions viz. , kedar Nath Dutt v Harra Chand Dutt, I. L. R. 8 Calcutta 420: Surendra keshub Roy v Khetter Krishto Mitter I. L. R. 30 Calcutta 609; Madhabmani dast v Lambert, I. L. R. 37 Calcutta 796: Shusan Chandra Mandal v chabimoni Dasi and Ors. 53 CWN 582 Chandranath. Bhattacharyya v State of west Bengal and Ors. 1990 (2) CLJ 159 1991 (2) CHN 151 Baynath Ram and ors. v Mr. Tunkowati Kuer and Ors. AIR 1962 Patna 285 (FB) Basiruddin khawaja Mohiuddin v Binraj Murlidhar and Ors. AIR 1987 BOMBAY 235: S. B. Saigal v Smt. Vidya Vijan AIR 1978 Allahabad 82: Lt. Col. S. K. Kashyap and ors, v State of Rajasthan AIR 1971 Supreme Court 1120 and Bhagwan swaroop and Ors. v Moolchand and Ors. AIR 1983 Supreme Court 355.;