MT UMATUR ROBAB Vs. MAHADEO PRASAD

JUDGEMENT

(1.) The material facts are these. A deed of simple mortgage was executed by one Mohammad Hasan in favour of one Nasir Ullah Khan. He purported to execute it on behalf of his sister, Mt. Ummul Farwah, as her general attorney. A sum of Rs. 900 was borrowed and property belonging to Mt. Ummul Farwah was hypothecated. The heirs of the mortgagee, Nasir Ullah Khan, subsequently sold their mortgagee rights to the respondents of this appeal. The latter instituted Suit No. 55 of 1934 for the enforcement of the mortgage by sale of the property hypothecated and impleaded Mt. Ummul Farwah as well as Mohammad Hasan as defendants to the suit, besides the heirs of Nasir Ullah Khan who had sold the mortgagee rights to the plaintiffs and who were impleaded as pro forma defendants. Mt. Ummul Farwah appeared and contested the suit, but Mohammad Hasan did not appear and the suit was ordered to proceed ex parte against him. The lady defendant pleaded that Mohammad Hasan had no authority to transfer her property and that consequently the mortgage deed executed by him was not binding on her. The learned Munsif who tried the suit held by his judgment dated 27 February 1935, that it was not proved that Mohammad Hasan had any authority to transfer his sister's property and that therefore the mortgage deed in suit was not binding on her. He also held that the money had been borrowed by Mohammad Hasan and that he was liable. In the result, the suit was dismissed as against Mt. Ummul Farwah and a simple money decree for Rs. 1761-10-0 with pendente lite and future interest was passed ex parte against Mohammad Hasan. More than a year later-on 4 May 1936- Mohammad Hasan applied under Order 9, Rule 13, Civil P.C., for the setting aside of the exparte decree. This application was dismissed by the learned Munsif on the ground that Mohammad Hasan's statement that he had no knowledge of the institution of the suit was untrue. An appeal was filed against this order by Mohammad Hasan. He died during the pendency of this appeal and no application for substitution of his legal representatives was filed within the time allowed by law. The result was that the appeal abated. Some time later an application was made that the abatement be set aside and the appeal be restored. This application has been refused by the appellate Court below by an order dated 15 April 1939, and the appeal in this Court is directed against that order.

(2.) Mr. Pandey for the respondents raises a preliminary objection to the hearing of this appeal on the ground that no appeal lies against the order of the Court below. His contention is that the appeal in the Court below, being an appeal from an order under the provisions of Order 43, Rule 1(d) read with Section 104 (1)(i), Civil P.C., no appeal lies against any order passed in that appeal. He relies on Sub- section (2) of Section 104, Civil P.C., which provides that no appeal shall lie from any order passed in appeal under that section. The argument of the learned Counsel for the appellant is that, in view of the provisions contained in Order 22, Rule 9, read with Rule 11 of that order, and of Clause (k) of Order 43, Rule 1 of the Code, the order passed by the Court below must be held to be open to appeal. He further contends that the words in Sub-section (2) of Section 104 should be interpreted to mean an order deciding the appeal on the merits. In my opinion the preliminary objection is well founded and the contention of the learned Counsel appearing for the appellant is without force. It is true that by reason of Rule ll of Order 22 the word "suit" in Rule 9 of that order includes an appeal, but we are not here concerned with an application to set aside the abatement of an appeal. The question for consideration is whether there is a right of appeal against an order passed on such an application in an appeal from an order. There is no provision in Order 43 laying down that the word "suit" in Clause (k) of Rule 1 of that order should be taken to include an appeal. I am further unable to accept the contention of the learned Counsel for the appellant that the words in Section 104, Sub-section (2) should be interpreted in the manner contended for by him. The words areperfectly general and I see no reason to restrict their meaning. I have come to the conclusion therefore that no appeal lies to this Court against the order of the appellate Court below.

(3.) I am asked to treat the memorandum of appeal as a petition in revision. I am unable, however, to do so as none of the grounds mentioned in Section 115, Civil P.C., are shown to exist. In my judgment this is not a case in which this Court should exercise its revisional jurisdiction. I dismiss the appeal with costs.