MOTI RAM Vs. KUNDAN LAL

JUDGEMENT

(1.) This is an appeal from a decree of the District Judge of Meerut, which in words directs the appeal before him to be dismissed. The case was one in which in a pending suit the present appellants purchased the interest of one Dalip; they made this purchase on the 5 July 1897. No application was made by the assignees or assignor to have the assignees brought on the record, and the suit was decided ex parte on the 13 July. The decree given in that suit was injurious to the present appellants, in that it debarred them from redeeming the mortgage. Thereupon the present appellants put in a memorandum of appeal before the Judge, and in that memorandum claimed distinctly that they were entitled to file an appeal under the circumstances set forth in their memorandum. This application was supported by the assignor who disclaimed all interest in the subject of the suit. The District Judge treated the application for leave to appeal as if it were an application properly made under Section 372 of the Code of Civil Procedure, and adopted the procedure prescribed by that section. Eventually the District Judge in his final order, after setting forth the facts, records that these appellants applied to be allowed to appeal under no Section whatever. And because they had taken no steps to have their names entered (apparently before decree was passed) the learned Judge held "they have no locus standi now." Having come to this conclusion the District Judge dismissed the appeal. This order is evidently a clerical blunder, and what the learned Judge meant no doubt was that the application for leave to appeal was rejected.

(2.) In our opinion the District Judge was wrong in refusing the application. Section 372 clearly does apply to such a case. The assignment here was an assignment which took place pending the suit, in the sense in which the word suit has been interpreted in many cases in the Privy Council. There was a suit pending when the assignment took place, and that being so, we think Section 372 is applicable, even though no application to have the assignees brought on the record was made till after the decree.

(3.) It is then contended that no appeal lies. Clearly Section 588 does not give an appeal, as the appeal given by that Section is an appeal against an order disallowing objections raised under Section 372. Here objections were raised and they were allowed; consequently Sub-section 21 does not apply. But it was held in the case of Indo Mati V/s. Gaya Prasad (1896) I.L.R. 19 All. 142, in which an application to be brought on the record under Section 372 had been refused, that the order rejecting the application was an adjudication on the representative right claimed by the applicant, and therefore amounted to a decree as that word is defined in Section 2 of the Code. Applying that case, it appears to us that an appeal does lie to us, and we are of opinion that that appeal should be allowed. The facts are perfectly clear. There can be no doubt that the assignment did take place, and, as we held above, the application to have the assignees brought on the record was made, and properly made, under Section 372 of the Code.