BANBIHARI MUKERJI Vs. BHEJNATH SINGH MAHAPATRA

JUDGEMENT

(1.) This is an application made under Section 115, Civil P.C., for an order setting aside the order of the District Judge of Bankura, dated l0 January 1931. That order was made in connexion with a Title Suit (No. 3/98 of 1927-30) and in course of a proceeding, which was described as Miscellaneous Case No. 44 of 1930. The title suit in question had been instituted by a lady, Sreemati Bibasana Debya, claiming a declaration of her title to and recovery of possession of certain lands and also a sum of money as against a lady, Sreemati Indubala Debya, and certain other persons. The plaintiff was successful at the trial and a decree was made in her favour on all points. Thereupon, the defendants appealed to the Court of the District Judge of Bankura,

(2.) The plaintiff, Bibasana Debya, died intestate, shortly after the filing of the appeal, and the defendants-appellants applied for substitution of the present petitioner in place of the deceased plaintiff-respondent, the petitioner being the son of the sister of the plaintiff's deceased husband and as such the reversioner to the estate not of the plaintiff herself, but to the estate of the plaintiff's husband. The matter then proceeded between the original defendant, Indubala, who was the principal defendant, and the substituted plaintiff, whose name was Banbihari Mukherji. It appears that, when the appeal first came before the Court, owing to some mistake, oversight or misapprehension, which we need not consider, the appeal was dismissed on the ground that the defendant-appellant had not taken certain steps in the proceedings. Thereupon the appellant applied for the restoration of the appeal and it was that application which was registered as Miscellaneous Case No. 44 of 1930. The opposite parties in that application were the present petitioner and the other respondents to the appeal. They all entered an appearance on 20 September 1930, but a month later, that is to say, on 29 October 1930, the defendants-appellants and the present petitioner decided to settle the matters in dispute in an amicable manner and they entered into a compromise of the proceedings. In order to carry that compromise into effect, they joined together in putting in a petition setting out that all the parties in Miscellaneous Case No. 44 of 1930 were in agreement, that the appeal in the original title suit should be restored and a decree should be made in that appeal embodying the terms of compromise which the parties in the proceedings had agreed upon. It appears that, as the learned Judge was engaged on some other work, the matter was not dealt with immediately but was adjourned for some time, that is to say, till 8th December 1930. On that date, a man named Bhejnath Singh Mahapatra put forward an application to the Court, which purported to be made under Section 151, Civil P. C, and in that application he alleged that he held two mortgages in respect of the property which was the subject-matter of the original suit as well as of other properties, which mortgages Bibasana, the original plaintiff in the title suit, was said to have executed in favour of Bhejnath Singh Mahapatra. The applicant alleged that the substituted respondent, Banbihari, had entered into the compromise for terminating the appeal in the title suit with the other side solely for the purpose of defeating his just claims as mortgagee of the property in dispute and he accordingly asked that he should be allowed to come into the proceedings and be made a party in the original suit, although it had at that time already become a matter in appeal and was then pending before the Court of the District Judge in the way I have mentioned.

(3.) Upon the hearing of that application on the part of Bhejnath Singh Mahapatra the learned District Judge made the order of 10 January 1931, which is the order now complained of by the present petitioner, who is the substituted respondent, Banbihari Mukherji. He says that the order of 10 January 1931, was made by the District Judge either unlawfully or with such irregularity as would entitle him to get relief at the hands of this Court under the powers vested in the Court by Section 115, Civil P.C. I have no doubt that, in some circumstances, it may be right and proper that the Court should add as parties to the proceedings, even at the appellate stages. persons who were not amongst the original parties to the suit. But the circumstances must be exceptional and must be such as renders it really necessary in the interest of the original parties to the suit, that some other persons should be added to the proceedings; so that the matters originally in dispute may be properly adjudicated upon and finally determined as between the original parties to the suit.