AMAR SINGH Vs. CHATURBHUJ

JUDGEMENT

(1.) THIS is an appeal by the defendant Ratanlal in a suit for redemption of mortgage. Ratanlal died during the pendency of the appeal and he is represented by his son Amar Singh. The respondents, who were plaintiffs in the trial court, brought the suit on the allegations that Mst. Parwati, the widow of Bherondas had mortgaged the suit house with Ratanlal for Rs. 801/- on Svt. 1974 Pos Sudi 7, and further sum of Rs. 199/- was borrowed by her from the mortgagee. The plaintiffs' case further was that Mst. Parwati's husband Bherondas was the great grandson of Naraindas and that the plaintiffs were the descendants of Harakchand and Moolchand, being their sons and grandsons and that Harakchand and Mool Chand were the grandsons of Naraindas and they were, therefore, the next reversioners of Mst. Parwati and as such were entitled to bring a suit for redemption of the suit property. The plaintiffs further alleged that the defendant Ratanlal had assigned his rights to one Anraj, defendant No. 2 on the 23rd of February, 1931, and had made over possession of the suit house to the latter along with the relevant document. The plaintiffs, therefore, prayed that redemption be allowed to them on payment of Rs. 1001/- to whichever of the defendants was entitled to receive the said amount. Anraj is said to have died during the pendency of the first appeal in the court of the Senior Civil Judge, Jodhpur and was represented in this appeal by respondent No. 14 Banraj. Banraj also died during the pendency of this appeal and I am informed that the appellant has not brought his legal representative or representatives on this record inasmuch as when Anraj was examined in the trial court, he had stated that he had nothing 13 do with the suit house and he had transferred it back to Ratanlal. The suit was resisted by Ratanlal whose main plea was that his wife Mst. Rupali was the daughter of the deceased Bherondas, husband of Mst. Parwati, mortgagor and that after Mst. Parwati's death, she was the next heir entitled to Mst. Parwati's property and as such she (i. e. Mst. Roopali) had redeemed the mortgage from himself and, therefore, Mst. Rupali was the owner in possession of the same in her own right. It may further be pointed out that in his written-statement Ratanlal did not admit the pedigree-table filed by the plaintiffs showing their relationship to the deceased Bherondas and put the plaintiffs to proof thereof. What transpired at the trial was that the court wanted Ratanlal to produce certain documents relating to the suit mortgage and the latter failed to produce them, whereupon by its order dated the 8th of September, 1919, the trial court struck off Ratanlal's defence and proceeded with the trial on that footing. Eventually, the trial court passed a decree for redemption against Ratanlal in favour of the plaintiffs respondents on payment of Rs. 1001/- by the plaintiffs to him. The defendant then went up in appeal to the District Judge, Jodhpur, from whose court the appeal was transferred to the court of the Senior Civil Judge who finally disposed of it. THIS appeal was dismissed on two grounds : first that the defendant's appeal was barred by time; and secondly, that the order of the trial court striking off Ratanlal's defence being an order passed under O. XI, R. 21 of the Civil Procedure Code was appealable under O. XLIII, R, 1 clause (f), and, as no appeal therefrom had been filed, that order had become final ; and consequently, it was not capable of being challenged in an appeal from the final decree. It is from this judgment and decree that the present appeal has been filed.

(2.) THE first question which arises for determination in this appeal is whether the learned Judge of the lower appellate court was right in dismissing the defendant's appeal as barred by time. THE relevant facts and dates in this connection are these. THE trial court passed its decree on the the 21st of November, 1950. THE date fixed for supply of the necessary copies was 26th of December, 1950, but; as the copies were not ready on that date, they were supplied to the defendant on the 22nd of January, 1951. It is said that the copies had been prepared earlier on the 16th of January, 1950, and were ready for delivery on that date, but as the defendant had on notice thereof, the fact that the copies were ready on 16th of January, 1951, is of no materiality and cannot affect limitation. It is conceded before me that the last date for filing the appeal in these circumstance was 26th of January, 1951, but as that day was a holiday, the appeal was filed on the 27th of January, 1951. THE appeal was, however, filed on the 27th of January, 1951, on a court-fee of Rs. 50/-only as against the court-fee payable being Rs. 75/-, and it is this factor which has caused all the trouble about limitation in this case. If the appeal had been filed on the 27th of January, 1951, on full court-fee, no question of limitation would have arisen at all. THE office reported on the 27th of January, 1951, that the appeal had been filed on deficient court-fee and that the deficiency amounted to Rs. 25/-worth of stamps. When the matter came to the notice of the court, a notice was directed to issue to the defendant-appellant asking him to make good the deficiency by 5th of February, 1951. THE notice was dated the 3rd of February, 1951. As this notice was not served, another notice was ordered to be issued on the 5th of February, 1951, and the matter was to come up for hearing before the court on the 8th of February, 1951. Learned counsel Shri Kalla for the defendant appeared on that date, and said that the deficiency had been made good on the 29th of January, 1951, which however was not a correct statement. Actually Stamps worth Rs. 25/- were filed in court on the 31st of January, 1951, and the order passed by the court then was that these should be put up with the file. On the 15th of February, 1951, the appeal was ordered to be registered by the Dist. and Sessions Judge, Jodhpur and notices were ordered to be issued against the respondents. It is in these circumstances that the question of limitation has arisen. THE Senior Civil Judge, as already stated, was of the opinion that the appeal was barred by time. His reasoning was that O. 7, R. 11, of the Civil Procedure Code did not apply to appeals and, therefore, the court was not bound to give any notice to the appellant to fulfill the deficiency of stamp as in the case of a plaint. He also took into account that the appellant had not filed any application under sec. 149 of the Code of Civil Procedure for extension of time and, therefore, no question for extension arose. THE learned Judge was also of the view that the court never actually condoned the delay in the filing of the appeal when it directed the stamps to be put up with the file. On these facts and circumstances, the learned Judge held that "the memorandum of appeal as filed on 27th January, 1951, was insufficiently stamped and that the deficiency was made up on 31st January, 1971, i. e. after the expiry of the period of limitation. THE appeal is, therefore, time-barred. "

(3.) 1 have already held above that the order of the trial court striking off the defence under Order 11 Rule 21 was entirely wrong, arbitrary and without jurisdiction and this cannot therefore be sustained.