ANANTALAL DAGA Vs. DEBI PRASAD PANDEY

JUDGEMENT

(1.) This appeal was originally filed by judgment-debtors 1 to 7, but by order No. 53 of this Court dated 21-1-1955 they have been transported to the category of the respondents and the heirs of respondent No. 1, since deceased, and respondents 10 to 18 have been transposed to the category of the appellants. Thus, the present appeal now is on behalf of some of the decree-holders.

(2.) The short facts are these. The judgment-debtors had certain interest in mokarrari tenure of surface right and certain interest in the underground right in Mouzas Tentulia and Thandabari which they mortgaged to the Chotanagpur Bank. Later on they mortgaged the same interest to certain other persons. In the year 1907 the Chota Nagpur Bank instituted a mortgage suit and in execution of the decree passed in that suit it purchased the mortgaged properties. Delivery of possession was obtained by it in due course. In this mortgage suit, however, the subsequent mortgagees were not made parties. Some time in 1929 the subsequent mortgagees assigned the subsequent mortgage to the decree-holders who instituted a mortgage suit, being Mortgage suit No. 54 of 1938, against the judgment-debtors. After litigation up to this Court, a final decree was passed in that mortgage suit on compromise between the parties. According to the terms of that final decree, the dues of the Chota Nagpur Bank up to February, 1940, was fixed at Rs. 57000 and this amount was payable by the decree-holders to the Bank within six months from the date of the compromise. The judgment-debtors were held to be entitled to redeem the mortgaged properties on payment of the amount of Rs. 57000 due on the first mortgage and of the dues of the second mortgage within eight months from that date. On failure of such payment the dues had to be realised by the sale of the mortgaged properties. It appears that decree-holder No. 4, namely, Anantalal Daga, alone paid the above sum of Rs. 57000 to the Chotanagpur Bank in Sept. 1947. There was an amendment of the final decree on 17-9-1949, and later on 14-11:1950 the said Anantalal Daga started execution of the decree in Execution case No. 108 of 1950 under the provisions of Order 21, Rule 15 of the Code of Civil Procedure as the other decree-holders did not join in the execution proceeding. Under the terms of the final decree, as appears from the execution petition, the total amount of the decree including costs amounted to Rs. 82,821/1/-, and the above amount was sought to be realised in that execution case by sale of the mortgaged properties. An objection was filed by the judgment-debtors to the execution of the decree under Section 47 of the Code of Civil Procedure and Section 13 of the Bihar Money Lenders Act. On 17-4-1951 the parties came to terms and a compromise petition was filed, according to which the amount which the decree-holders were to get was settled instead of the above sum of Rs. 82,821/1/- at Rs. 1,05,000, and they were also given interest thereon at seven annas per cent from 1-1-1951. The decree-holders agreed not to proceed with their prayer for sale in the execution case and the amount payable to them was to be realised in that execution proceeding by appointment of a receiver of the mortgaged properties and the abovenamed Anantalal Daga was appointed a receiver on certain terms recited in the compromise petition. It was also stipulated in the compromise that if the said Anantalal Daga could not perform the function of the receiver for any reason, the decree-holders will select one amongst them who will continue to be the receiver. On 7-5-1951, the judgment-debtors filed a petition supporting the compromise and made a prayer for the appointment ol a receiver in terms thereof. The learned Subordinate Judge, however, refused to record the compromise and rejected the application for recording the same and appointing a receiver. The judgment-debtors 1 to 7 thereupon, on 27-7-1951, filed the present appeal in this Court and prayed for an order recording the compromise. On 23-3-1952, Anantalal Daga died, and his heirs were substituted in his place. On 10-9-1952, Gopallal Daga, one of the decree-holders, made an application in this Court for being appointed a receiver on account of the death of Anantalal Daga and on the next day a consent order was pa-sed by this Court appointing Gopallal Daga as receiver. Long thereafter, on 7-1-1955. the judgment-debtors filed an application for withdrawing the appeal and a notice of this application was given to the decree-holders in advance on 23-12-1954. Some of the decree-holders, therefore, made an application on 3-1-1955, for being transposed to the category of the appellants and for transposing the judgment-debtor-appellants as judgment-debtors-respondents. The prayer of the decree-holders was allowed on 21-1-1955, and the parties were transposed accordingly. On 7-1-1956, the estate of the judgment-debtors vested in the State of Bihar under the provisions of the Land Reforms Act and notice tinder Section 4(ee) of the Land Reforms Act was served on the State of Bihar and it has been added as a party respondent to the appeal. It appears that one of the decree-holders was Chunilal Daga. After the order under appeal but before the filing of the appeal, this Chunilal Daga died, and bis heirs were substituted in the execution proceeding on 19-7-1951. In the appeal that the judgment-debtors-filed here on 27-7-1951, they, in ignorance of the death of Chunilal Daga and the substitution of his heirs in the execution case made him respondent No. 19 in the memorandum of appeal. On 20-2-1957, the judgment-debtors, who now became the respondents in the appeal, filed an application that Chunilal Daga was dead and no substitution of his heirs having been made in the appeal, the same became incompetent. On 15-7-1957 the heirs, of Chunilal Daga made an application in this Court for being added as parties to the appeal. By an order of this Court this application was directed to be disposed of at the time of the hearing of the appeal itself.

(3.) Mr. Ghosh for the judgment-debtors-respondents has taken a preliminary objection that in the absence of the heirs of Chunilal Daga, one of the decree-holders, the appeal is incompetent. His contention is that the appeal was filed against a dead person and that his heirs not having been substituted within the time allowed by law, the appeal abated and has thus become incompetent. He has also contended that the application made by the beirs of the deceased Chunilal Daga to be made parties should; be rejected in limine as it was made more than three years after his death. His submission is that the residuary Article 181 of the Limitation Act applied to the case and the application should have been made under that article within three years from that date. This article requires an application for which no period of limitation is provided elsewhere in the Limitation Act or by Section 48 of the Code of Civil Procedure, to be made within three years from the date when the right to make the application accrues. According to Mr. Ghosh. Chunilal Daga having died sometime before 27-7-1951, an application by his heirs to be made parties should have been made within three years from that date. I am unable to agree with the above contention.