JAMNA BIBI Vs. SHEIKH JHAU

JUDGEMENT

(1.) In this case one Musammat Bholi Bibi instituted a suit against Binda Prasad and Sheikh Jhau, her son, for a declaration that certain shares in two villages were not liable to be sold in execution of a decree obtained by one Baijnath against her son, Sheikh Jhau. The lower Court dismissed the suit, and thereupon Bholi Bibi appealed, but died before the determination of the appeal. Musammat Jamna Bibi applied to the Court to be brought on the record in the place of Bholi Bibi, alleging that she was the assignee of the shares in the property in dispute under a parole gift made to her by Bholi Bibi prior to her death. The District Judge found that the alleged assignment was not proved, and refused the application. Hence the present appeal.

(2.) The appeal came before a Bench of this Court, when a preliminary objection was taken by the learned vakil for the respondents to the hearing of the appeal, on the ground that the order of the District Judge being one under Section 372 of the Civil P. C., and not being one disallowing an objection made under that section, no appeal lay. There is a conflict in the rulings of a Bench of this High Court in the case of Moti Ram V/s. Kundan Lal (1900) I.L.R. 22 All. 380 and of a Bench of the High Court at Calcutta in the case of Lalit Mohan Roy V/s. Shebock Chand Chowdhry (1900) 4 C.W.N. 403. The Bench before whom the present appeal came considered that the decision in the former case was open to grave doubt, and thought it desirable to have the appeal referred to a larger Bench for determination. Accordingly the appeal has come before us.

(3.) In the case of Moti Ram V/s. Kundan Lal to which we have referred, the facts were as follows: A defendant, pending suit, made an assignment of his interest therein. No application was made by the assignees or the assignor to have the assignees brought on the record, and the suit was decided ex parte unfavourably to the assignees. Thereupon the assignees filed a memorandum of appeal, claiming to be entitled to file an appeal under the circumstances set forth in their memorandum. Their application was supported by the assignor, who disclaimed all interest in the subject-matter 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 Civil P. C., but in his final order recorded that the applicants applied to be allowed to appeal under no section whatever; and because they had taken no steps to have their names entered apparently before the decree was passed, held that they had no locus standi then, and he accordingly rejected the application for leave to appeal. On appeal the matter came before a Division Bench of this Court, which held that the District Judge was wrong in refusing the application, and that Section 372 clearly applied to such a case. In arriving at this conclusion they adopted the decision in the case of Indo Mati V/s. Gaya Prasad (1896) I.L.R. 19 All. 142 as being an authority upon the question, and held that an appeal did lie from an order rejecting an application made under Section 372.