PADMA BAI Vs. ANASUYA R KABADY

JUDGEMENT

(1.) This Revision Petition arises from order dated 6.2.1995 passed on the application under Order 1 Rule 10 of CPC., in a suit under Order 34 Rule 1 of Code of Civil Procedure. The Revision was listed along with an application for vacation of stay order. The parties in the case are represented, plaintiff-respondent had moved an application for vacation of stay order and sought the early listing of that case. On behalf of the Counsel for the applicant desired as well as Counsel for all the respondents agreed that the Revision, may itself be heard and disposed of. Respondents 2 and 3 are also served and are represented by Sri H.R. Viswanath who put his appearance on their behalf, while Sri K.R. Nagendra appeared for plaintiff-respondent. The vacating of stay order no doubt will allow the suit to proceed but in case the Revision is allowed and suit is decided earlier than the Revision revisional order may become infructuous.

(2.) I have heard Sri P. Ganapathy Bhat, Counsel appearing on behalf of the applicant and Sri K.R. Nagendra, Counsel for respondent No. 1, Sri H.R. Viswanath present on behalf of respondents 2 and 3. The applicant's Counsel submitted before me that, in a suit under Order 34 Rule 1, the lessee in possession of the property which is subject matter of the mortgage is also a necessary party and he should have been impleaded as a party in the suit. But the plaintiff did not implead the applicant, so the application moved under Order 1 Rule 10 of CPC., by the applicant. The learned Counsel submitted that defendants 1 and 2 i.e. respondents 2 and 3 have let out the property in favour of the applicant by lease deed dated 10.8.1992 for a period of 25 years that is sometimes after entering into the transaction of mortgage dated 8.9.1989 between the plaintiff and defendants 1 and 2. The learned Counsel submitted that, before filing of the suit the property had been leased out by the mortgagors i.e. respondents 2 and 3 in his favour and as it has been leased out after the mortgage but before the institution of suit for redemption, the learned Counsel submitted that, as such he was a necessary party and he ought to have been allowed to be impleaded but the learned Court below taking a wrong view of law, illegally refused to exercise jurisdiction vested in it under Order 1 Rule 10 of CPC.

(3.) The learned Counsel for the applicant placed reliance on the Decision of Their Lordships of Supreme Court in the case of MANGRU MAHTO vs. TARAKNATHJI, AIR1967 SC 1390 , 1968 (16 )BLJR322 , [1967 ]3 SCR125 . On behalf of respondents Sri Nagendra submitted that Court below has not committed any error in refusing to implead and to allow the application under Order 1 Rule 10 CPC., moved by the applicant even otherwise as well every error committed by the Court below i.e., subordinate Court does not amount to jurisdictional error entitling the party to seek Revision. He submitted that every decision cannot be subject matter of Revision under Section 115 CPC. So Revision should be dismissed.