FAROOQ Vs. MOTI LAL

JUDGEMENT

(1.) This is a defendant's appeal directed against an order of remand.

(2.) The plaintiffs filed a suit for redemption of a house on the basis of a mortgage deed dated 2-4-1896, on payment of Rs. 200/- or such amount as the court may find due and for possession. The house had been originally mortgaged by one Ram Lala to Smt. Nasiba for a term of five years without any agreement as to payment of interest. The plaintiffs alleged to be legal representatives of the mortgagor while the defendants claimed to be legal representatives of the original mortgagor. It so happened that during the pendency of the suit Abdul Sattar, defendant No. 7 one of the alleged mortgagees died. An application for substituting his heirs was made by the plaintiffs but it was rejected along with the application under Sec. 5, Limitation Act for condoning the delay. In the opinion of the trial court the delay had not been sufficiently explained and hence the application under Section 5 and also the application for substitution were rejected. Still, however, the suit was decreed with the observation that the suit could proceed even in the absence of the legal representatives of the deceased defendant No. 7 as the latter was only commercially interested and had no direct or tangible interest in the subject matter. The defendants had contended that the said defendant being one of the mortgagees was a necessary party to the suit and it was imperative for bringing the heirs of the said defendant on record and in their absence the suit could not proceed. The first court rejected their contention. The defendants preferred an appeal against the decree of the trial court. While disposing of the appeal the lower appellate court expressed the view that the order of the trial court dismissing the application under Section 5 Limitation Act which accompanied the application for substitution of the heirs of defendant No. 7 was erroneous. After going through the evidence it came to the conclusion that sufficient cause had been shown for not making the substitution earlier and in that view of the matter the lower appellate court allowed the heirs of the deceased defendant No, 7 to be brought on record, set aside the decree of the trial court and remanded the case for a fresh trial. It also issued other incidental directions as to the manner in which the trial, court was to proceed.

(3.) It has been vehemently urged by the counsel for the appellant that the power of an appellate court to bring on record the heirs of a deceased party can be exercised only with respect to the parties who have died during the pendency of the appeal and that it does not extened to substitute the heirs of a party whose death occurred during the pendency of the suit. He relied upon State of Gujarat v. Chandramani Shan-ker Jadhavlal Sanghvi, AIR 1963 Guj 243, as an authority for that proposition. The principle of law urged is perfectly sound but on the facts of the present case it is not attracted. The rule laid down in the Gujarat case (supra) would be fully applicable where the death of a party had taken place during the pendency of the suit but no steps had been taken for substituting the heirs. In those circumstances it is not open to the appellate court to order that the heirs of the deceased party be added. Where, however, in the event of death of a party during the pendency of the suit applications for substitution and for condonation of delay had been made before the trial court and had been rejected, surely there is nothing which limits the jurisdiction of the appellate court to examine the validity of the order and, if satisfied, to come to a different conclusion and set aside an erroneous order. That is a proposition of law which can be hardly disputed. The powers of the appellate court are wide enough to correct any erroneous or illegal order which had been passed by the trial court and against which no appeal was provided under the law. In fact, it is part of the jurisdiction of the superior court to see whether an order regarding a substitution application by the result of which the decision in the case would be affected satisfies the requirements of law.