KRISHNAJI RAMCHANDRA KOSHTI Vs. BHIKCHAND RAMKARAN MARWADI

JUDGEMENT

(1.) THIS appeal arises out of an application made by the appellant in execution proceedings which had been started by him to execute a mortgage decree obtained by him in suit No.136 of 1923. The property involved in the suit had been mortgaged to the appellant-plaintiff by one Narayan Ramji on April 15, 1916. Subsequent to this the same property was mortgaged by Narayan to the respondent Bhikchand Ramkaran Marwadi on June 7, 1917. In 1921 Bhikchand filed a suit on his mortgage and obtained a mortgage decree on August 17, 1922, and in the course of the execution proceedings on that decree he himself purchased the property on March 3, 1931, the sale being confirmed on May 25, 1931. In the meanwhile the plaintiff filed his suit, No.136 of 1923, and obtained a decree on August 4, 1923. To this suit Bhikchand had not been joined as a party. The plaintiff filed darkhasts in 1927 and 1930, but these were not prosecuted. Finally darkhast No.360 of 1931, from which this appeal arises, was filed by him on March 21, 1931, prior to the confirmation of the sale of title property to Bhikchand. On April 5, 1933, the Court of Wards on behalf of the plaintiff applied in darkhast No.450 of 1931 to add Bhikchand as a party. The learned trial Judge rejected the application holding that it could not be made under Order XXII, Rule 10, of the Code of Civil Procedure, 1908, upon which the applicant relied, because in his view that rule did not apply to execution proceedings. He also held that Bhikchand being a purchaser at a Court sale was. not the legal representative of the judgment-debtor. Against this order there was an appeal to the District Judge of Ahmednagar who dismissed it, and the applicant has come in second appeal.

(2.) A preliminary objection has been raised by Mr. Dharap for the respondent that no second appeal lies. His contention is that the appellant's application to add Bhikchand as a party to the darkhast is an application under Order XXII, Rule 10, and against an order made under that rule an appeal lies under the provisions of Order XLIII, Rule 1, Sub-clause (1), and under the provisions of Section 104, Clause (2), of the Code of Civil Procedure, no second appeal lies from any order passed in appeal under Order XLIII, Rule 1. The question therefore is whether the provisions of Order XXII, Rule 10, applied to the present application which was one made in the course of execution proceedings. For the appellant it is contended that Order XXII, Rule 10, does not apply to execution proceedings. In support of that contention reliance is placed on the language of the rule itself which is as follows: In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

(3.) I am with respect of opinion that the view expressed by the majority of the full bench in Muthiah Chettiar v. Govindoss Krishnadoss and by the Calcutta High Court in Midnapore Zamindari Co. Ld v. Naresh Narain Roy that Order XXII, Rules 10; applies to execution proceedings, is correct. It is difficult to, reconcile the opposite view with the provisions of Rules 12 of the Order. If the Legislature had intended that Rules 10 should not apply to execution proceedings, that rule would have been mentioned in Rules 12 along with Rules 3, 4 and8. It was argued that the language of Rules 10 itself precluded, its application to execution proceedings since it referred to suits. But there is a similar reference to suits in Rules 1, 2, 7 and 9 of the Order and it is not contended that these rules also do not apply to execution proceedings. The appellant's application must therefore be treated as an application made under Order XXII, Rules 10, and that being so, no second appeal lies. The appeal must therefore be dismissed with costs.