SULOCHANA BHAI THAMBURATTI Vs. GOURIKUTTY AMMA

JUDGEMENT

(1.) The Deputy Registrar has put up a note with reference to a letter of the Officiating Officer Commanding addressed to the District Collector, Ernakulam, Kerala and copied to the Registrar, High Court of Kerala, Ernakulam, forwarding another letter sent by the 2nd respondent herein to the District Collector, Ernakulam and copied to the Registrar of this Court seeking direction as regards the next stop to be done in this case in view of the aforesaid communications. In the letter sent by the 2nd respondent to the District Collector he says that he is serving in Military under special condition and that he is not in a position to conduct the case. He further says that there is nobody in the Kerala State who can be 'interested' (entrusted) with the duty. The Officiating Officer Commanding says in his letter that the facts brought out by the second respondent are genuine.

(2.) Under S.6(1) of the Indian Soldiers (Litigation) Act. 1925, if the Court has reason to believe, that an Indian Soldier, who is a party to any preceding pending before it, is unable to appear therein, and if he is not represented by any person duly authorised to appear, plead or act on his behalf, the court shall suspend the proceeding, and shall give notice thereof in the prescribed manner to the prescribed authority. The proviso thereto enables the Court to refrain from suspending the proceeding and issuing the notice as aforesaid in two contingencies of which one is that the interests of the soldier in the proceeding are, in the opinion of the court, either identical with those of any other party to the proceeding and adequately represented by such other party or merely of a formal nature. The learned counsel for the revision petitioner sought to rely on this clause to contend for the position that I should refrain myself from suspending the proceeding and issuing the notice as contemplated by S.6(1) as aforesaid. The submission is that the 2nd respondent, who is the son of the 1st defendant in the suit which is one for redemption of a mortgage and in which the preliminary decree for redemption has been passed. assigned her mortgage right to the 2nd defendant, son, only after 2nd June 1975 when this court as per its judgment in S. A. No. 160 of 1973 setting aside the dismissal of the suit directed the final decree proceedings to be proceeded with. It is submitted that the mother assigned the mortgage right only on 19th May 1976 on the basis of which assignment the son got himself impleaded as additional 2nd respondent in I. A. No. 7041 of 1969 which is a petition for passing the final decree. On that basis it is contended that the interests of the mother and the son, the assignor or assignee, are identical and that the 2nd respondent's interests are adequately represented by the 1st respondent, mother.

(3.) It appears to me that since on the basis of the assignment, the son has been allowed to be on the party array as additional 2nd respondent in the final decree proceedings it cannot be said that the assignor, though his mother, can be said to have identical interest in the property with those of the 2nd respondent. Nor am I prepared to say, as at present advised, that the 2nd respondent's interests are adequately represented by the mother, the 1st respondent herein, who has assigned all her interest in the property to her son. In that view I am not prepared to say that the proviso is attracted to the instant case.