SHEO KUMAR Vs. VISHWA NATH SINGH

JUDGEMENT

(1.) This appeal has been filed by Shiv Kumar who was a defendant in a mortgage suit in which the relief for foreclosure was claimed by the mortgagee. The appellant was arrayed as a defendant along with other defendants also who belonged to the family of the mortgagor. On 15-3-1948 the trial court passed a preliminary decree for foreclosure in favour of the plaintiff directing that an amount of Rs. 4181/5/3 be deposited by the judgment-debtors in court on or before 15-9-1948 failing which a final decree of foreclosure would be passed. It appears that the judgment-debtors failed to make the deposit by 15-9-1948. They made various deposits of small amounts on various dates by making prayers for extension of time to the court or by making compromise with the decree-holder to the effect that time may be extended. The various instalments of money thus deposited by the judgment-debtors eventually amounted to a sum of Rs. 2500/-. In the end the court refused to give the judgment-debtors any further time for deposit of any further amount. The decree-holders made an application, for preparation of a final decree, The court allowed that application and on 25-3-1950 a final decree for foreclosure was passed. Thereafter the appellant who was a judgment-debtor made an application for the refund of Rs. 2500/- which has been deposited by him after the passing of the preliminary decree. It may be noted that, on the date of the application this amount was still in the hands of the court and had not been realised or withdrawn by the decree-holders. Both the courts below have rejected the prayer of the appellant who had deposited this amount. This appeal has been filed by Shiv Kumar who had deposited the amount.

(2.) A preliminary objection has been taken in this appeal. It appears that Vishwa Nath respondent No. 7 died and no steps were taken to bring his legal representatives on the record. It is no doubt correct that Vishwa Nath died. I do not, however, think that his death would make any difference to the maintainability of the appeal. Shiv Kumar the appellant is his son and is already on the record. His two other sons viz. Bankey Lal and Gokaran are also on the record as respondents Nos. 5 and 6. His legal representatives are, therefore, already on the record. All that is to be done is to make a note against their names that they are also the representatives of the deceased. In any case, the money was deposited on behalf of Shiv Kumar, and Shiv Kumar alone can give the application for its refund. The death of Vishwa Nath, therefore, would make no difference to the maintainability of this appeal. I, therefore, overrule the preliminary objection.

(3.) Having heard the learned counsel for the appellant I am of the opinion that this appeal should be allowed. The lower appellate court has rejected the application of the appellant-judgment-debtor for refund on the ground that the deposits made by the judgment-debtor in the court were held in trust by the court for the decree-holders. The relevant portion of the judgment runs as follows :