JADUNATH ROY Vs. MURARI MOHAN MULLICK

JUDGEMENT

(1.) This appeal has been preferred from an order dated 12 April 1930 passed by the Subordinate Judge, Second Court, 24 Pargannas. The order has been passed in a suit for partition being title Suit No. 190 of 1929. In this suit a vary large number of parties are concerned and one of the defendants therein is defendant 6 son of one Bhuban Mohan Mallik deceased. The suit was instituted on 30 August 1929 and a preliminary decree was passed on it on 1 October 1929. After the decree was passed as aforesaid a Commissioner was appointed to make the allotments. Now, Bhuban Mohan Mallik the father of defendant 6 had prior to the institution of the aforesaid suit for partition and on certain dates in the years 1923 and 1924 affected certain mortgages and further charges in favour of the appellants in respect of his one-eighth share in some of the properties which subsequently came to form the subject-matter of the aforesaid partition suit. Bhuban Mohan Mallik died in April 1925. In June 1926 the appellants instituted a suit on the original side of this Court for realization of the amounts due upon the said mortgages and further charges and obtained preliminary decree in that suit on 12 January 1928. In execution of the said decree the properties mortgaged and charged as aforesaid were put up to sale and the mortgagor's share therein was purchased by the appellants on 11 January 1930. The appellants had on 12 December 1929 and prior to their purchase made an application before the learned Subordinate Judge in connexion with title Suit No. 190 of 1929, namely the partition suit aforesaid, alleging that they as well as the receiver appointed in the mortgage suit were necessary and proper parties to the partition suit and praying to be so added as parties thereto. They made a further application for the said purpose on 14 January 1930, that is to say, after having made the purchase on 11th January 1930. These applications were dealt with by the learned Judge on 29 January 1930, the plaintiffs in the partition suit having in the meantime filed objections to the appellants applications. The learned Judge made the following order: I do not consider necessary at this stage to make the petitioners parties to the suit. The Commissioner will however allow the petitioners facilities to be present at the commission on behalf of their alleged vendor defendant 6. The Commissioner may also hear their submission with regard to properties Nos. 1 to 20, Schedule B as if they are made on behalf of defendant 6.

(2.) The sale was thereafter confirmed and upon that a further application was made by the appellants renewing their prayer to be added as parties to the suit in order that they might appear before the partition Commissioner and put their case before him with regard to the allotments that he was to make. This application was dealt with by the learned Judge on 12th April 1930 by an order which ran in these words: Pleaders heard. The petitioner need not be made a party at this stage. They have already been given facility for watching the proceedings before the Commissioner, and to make their submissions to him. 1 may look into the matter at the time of final hearing.

(3.) This is the order from which the present appeal has been preferred.