MT MOTI BALA DEBI Vs. SATYANAND TIRTHA SWAMI

JUDGEMENT

(1.) This is an appeal from the judgment and decree passed by the learned District Judge of Benares in a suit brought by the plaintiff-appellant for enforcement of a mortgage deed dated 8 January 1921, executed by one Kalkanand Swami who was the Mahant of a shrine situate in Benares. A preliminary decree was passed against the aforesaid Kalkanand Swami on 24 February 1924. He died shortly afterwards. The period of grace fixed in the preliminary decree was three months. By an application dated 13 May 1924, the plaintiff-appellant prayed that Mahant Satyanand, the present respondent, be brought on the record as the legal representative of the deceased Kalkanand Swami. The former objected to the proceeding, taken by the plaintiff-appellant, on the ground that the property which had been mortgaged by Mahant Kalkanand Swami and to which the preliminary decree related was endowed property appertaining to the mutt of which Kalkanand Swami was the presiding Mahant and of which the respondent is now the Mahant in succession to Kalkanand Swami. It was pleaded that the mortgage not being for any legal necessity was not binding on the mutt and on the respondent. Mahant Satyanand Swami also denied being the legal representative of Kalkanand Swami. The learned Subordinate Judge, before whom the case came up in the first instance, held that the property mortgaged by Kalkanand Swami was endowed property appertaining to the mutt of which he was the Mahant and that there was no legal necessity for the loan evidenced by the mortgage deed in suit. The application for final decree under Order 34, Rule 5, Civil P.C., was disallowed. An appeal to the learned District Judge was unsuccessful. The present second appeal has been filed by the plaintiff impugning the view taken by the Courts below.

(2.) The learned advocate for the plaintiff-appellant has contended before us that the provisions of Order 34, Rule 5, Civil P.C., are imperative and that if within the time limited by the preliminary decree the mortgage money has not been paid the Court has no option but to refuse to pass a final decree. We are unable to accede to this argument. The provisions referred to should be read with other provisions of the Civil Procedure Code. It is clear that a final decree cannot be passed unless some legal representative of the deceased defendant against whom a preliminary decree was passed is brought on the record. If the attempt to treat Satyanand Swami as the legal representative of the deceased fails, it is obvious that no final decree can be passed, Satyanand Swami can be treated as the legal representative of Kalkanand Swami if the mortgaged property is part of the endowed property which was in the management of Kalkanand Swami, who has been succeeded in that management by Satyanand Swami. Under Order 22, Rule 4(2), Civil P. C, a person against whom an application is made for substitution can, if brought on the record, make any defence appropriate to his character as the legal representative of the deceased defendant. If therefore Satyanand Swami be treated as the legal representative of the deceased it is open to him to contest the plaintiff's claim to obtain a final decree on the ground that the mortgage deed executed by Kalkanand Swami was invalid and that a final decree should now be refused. If Satyanand Swami be not treated as the legal representative of the deceased the application made by the plaintiff-appellant for the representative of Kalkanand Swami being brought on the record should stand dismissed, in which case the Court cannot proceed to pass a final decree under Order 34, Rule 5, Civil P.C.

(3.) We have not been able to discover any definite order of the trial Court directing the name of the respondent being substituted as the legal representative of the deceased Mahant but the trend of the judgment of the learned Subordinate Judge shows that he was inclined to the view that Satyanand Swami having inter- meddled with the estate of Kalkanand Swami is his legal representative. He, however, held that the property mortgaged by Kalkanand Swami is part of the property appertaining to the mutt and the mortgage not being warranted by any legal necessity was void. These were the grounds urged by Satyanand Swami in his character as the legal representative of the deceased. Having arrived at that finding he refused to pass the final decree. The learned District Judge has not specifically referred in his judgment to the question as to whether the plaintiff- appellant's application for substitution of Satyanand Swami in place of Kalkanand as the latter's legal representative should be allowed. He has agreed with the view taken by the learned Subordinate Judge as regards the character of the property and the validity of the mortgage. Accordingly he upheld the order refusing to pass the final decree.