BHAGWAN SINGH Vs. KULWINDER SINGH

JUDGEMENT

(1.) THIS appeal under Clause 10 of the Letters Patent arises out of an execution first appeal decided by the learned Single Judge. In execution of a decree obtained by Bhagwant Singh, who is since dead and is represented by his legal representatives, for the recovery of money amounting to Rs. 2,208-89 the property in dispute was put to auction. The highest bidder deposited one fourth of the amount at the spot and later he deposited the remaining 75% amount also. The sale was subsequently confirmed on 31st August, 1964. There were eight persons who were entitled to the property which was the subject-matter of the sale. Four out of them, namely, Bhagwan Singh Gurdial Singh, Surjan Singh and arjan Singh, hereinafter referred to as the plaintiffs judgment-debtors, filed an application under Section 47. Civil Procedure Code, impleading the other four as respondents, alleging that the sale was void inasmuch as 75% of the balance was not deposited within the time prescribed under Order 21, Rule 85. Civil Procedure code (hereinafter referred to as the Code ). The Executing Court did not find in favor of the objectors and dismissed the application. An execution first appeal (E. F. A. 458 of 1965) was filed by all these four judgment-debtor-objectors. During the pendency of the appeal two of them, namely, Gurdial Singh and Surjan Singh died and their legal representatives were not brought on the record within the prescribed time. The learned Single Judge felt that the appeal abated as a whole and dismissed the same. Being aggrieved against this, Bhagwan Singh and Arjan Singh the two surviving appellants, filed the present appeal. The main argument of the learned counsel for the appellants was that each one of the judgment-debtors, including the four who had filed the application under section 47 of the Code, had an independent right to question the sale as a whole on the ground that the provisions of Order 21. Rule 85 of the Code had not been complied with. Order 21, Rule 85 of the Code provides as follows:-

(2.) RELIANCE was placed by the learned counsel inter alia on a Bench decision of this court, to which one of us was a party, in Parbhati v. Lalji Mal, L. P. A. 721 of 1970, decided on 2-3-1972 (Punj ). In that case the equity of redemption had come to be inherited by two branches of the mortgagor. One branch got the mortgage redeemed by paying the entire amount. A suit was brought by 13 members of the second branch claiming redemption of one-half by payment of the proportionate amount to the other branch. The suit was dismissed by the lower appellate Court on the plea that the suit having been brought more than 60 years after the date of the original mortgage the same was barred by time.

(3.) DURING the pendency of the regular second appeal filed by these 13 persons. Four of them died and their legal representatives were not brought on the record within the time by the surviving appellants. The learned single Judge held that the appeal abated as a whole. This conclusion was not affirmed by the Letters Patent bench. Various decisions on the point were discussed and it was felt that inasmuch as each of the 13 plaintiffs had an independent right to get the redemption of his own share in the property claimed, they could have brought 13 different suits and the decision in one suit could have no bearing on the decision in the other and, therefore, by not bringing on the record the legal representatives of the four plaintiffs, the right of those plaintiffs only to get their share was lost but that did not affect the right of the remaining plaintiffs. However, the Bench did not finally decide this point, because on the question of limitation it was felt that the suit having been brought more than 60 years from the date of the original mortgage, was liable to be dismissed and so was their appeal, and thus no firm finding was given on the question of abatement. This case, therefore, can hardly be of any assistance to the appellants.