MOHAN PRASAD SINGH DEO Vs. GANESH PRASAD BHAGAT

JUDGEMENT

(1.) This is an interlocutory application in Misc. Appeal No. 72/49, which is pending in this Court. The application is to amend the cause-title or the appeal memorandum by impleading the two persons; (1) Rajendra Prasad Bhagat and (2) Kamala Devi as party-respondents in the appeal and for condoning the delay. The appeal was filed on 11-10-1949, and this application was made on 25-9-1950. In order Ho appreciate the circumstances under which the application has been made, it is necessary to set out a few facts. M.A. 72/49 is against the order of the learned Subordinate Judge of Berhampur on M.J.C. No. 92/48 before him. That was an application under Section 47 Civil P. C., in the course of proceedings for execution of a mortgage-decree obtained against the father of the present appellant by the decree-holders therein. By that petition, a question was raised by the judgment-debtor that the decree obtained against his father was not execuable against him, without determination of the question whether the mortgage on which the decree was based was for legal necessity. The learned Subordinate Judge decided that the present appellant was not entitled to raise the question in the course of the execution proceedings, but could do so only by a separate suit. It is against this order that the judgmentdebtor has brought up the appeal pending in this Court against the decreeholders. They are 13 in number and at the date of the decree appear to have been members of a joint family. The two persons now sought to be impleaded as party-respondents were on the record of the Executing Court as jointdecree- holders by the date when the order appealed against, was passed by the learned Subordinate Judge. Out of them, the first Rajendra Prasad Bhagat was the original 4th decree-holder. The second Kamala Devi is the daughter of the original 5th decree-holder, Laxmi prasad Bhagat. Consequent on his death on 11-4-1947, she was substituted in his place in the execution proceedings by the order of the learned Subordinate Judge dated 30-9-1947.

(2.) The affidavit in support of the present application states that the noninclusion of the above two names in the case title of the appeal memorandum, when filed, was due to the bona fide mistake of the petitioners' Advocate and explains how the mistake is said to have arisen. According to that affidavit, the papers for filing the appeal were received by post by the learned Advocate. The certified copies of the judgment and the decretal order against which the appeal was to be filed did not contain the names of the respondents excepting that of the first with the addition of "and others." Along with the papers, a copy of the execution petition was also received which shows the names of the decreeholders and in preparing the appeal memorandum the names as given in this copy were followed. It is further stated in the affidavit that the appeal on examination by the Stamp Reporter was found to be in proper order and that it was only during the course of the service of notice and the return thereof, that the mistake came to the knowledge of the learned Advocate and that thereafter after the necessary inquiries the correct facts became known. The learned Advocate Mr. Chatterjee has also filed an affidavit couching for the correctness of these statements. No counter-affidavit has been filed on behalf of either of the two persons sought to be impleaded controverting these statements. It must be noticed however that the present application was preceded by another application dated 15-3-1950 in which the substitution of Kamala Devi alone as a respondent was asked for in the place of the deceased Laxmi Prasad Bhagat. That was presumably on the footing that the said Laxmi Prasad died since the filing of appeal, and that the same came to the knowledge of the appellant on account of the service return on the said Laxmi Prasad Bhagat. His name was in fact shown in the cause title of the appeal memorandum, as originally filed. To that application, a counter-affidavit was filed on behalf of Kamala Devi stating that her father had died much earlier in the year 1947 and that her name had already been substituted in the rank of decree-holders. It would appear that it was only after that counter-affidavit was filed, that the correct position came to the notice of the learned Advocate for the appellant, and the mistake as regards not im-pleading Rajendra Prasad Bhagat also was discovered. The present application for amendment of the cause-title has accordingly been filed both as regards Kamala Devi and Rajendra prasad Bhagat.

(3.) The application is opposed on behalf of both the parties sought to be impleaded. It is strenuously urged that so far as the Advocate who has filed the appeal and who has also filed the affidavit swearing to this position is concerned, he may have done, what he did bona fide, but that does not absolve the judgment-debtor himself, nor entitle him to bring on record, by way of an amendment these two persons as respondents at a time when a fresh appeal, if filed, against them, would be time-barred. It has been strenuously urged that the discretion of the Court in such matters must be exercised with the same strictness which governs an application under Section 5 of the Limitation Act.