KAILASH CHANDRA BASU Vs. GIRIJA SUNDARI DEBI

JUDGEMENT

(1.) The circumstances of this case are peculiar. One Ganga Mohan Bose died, and on his death his widow, Bindu Bishini, succeeded to a widow s interest in his estate. In 1877 she executed a mortgage in favour of defendant No. 1. Subsequently, the mortgagee took action under Section 7 of Regulation XVII of 1806, and, notwithstanding the argument that has been adduced to us, I see no reason to hold that there was any irregularity in those proceedings. As a sequel, the mortgagee instituted a suit which resulted in a decree for foreclosure against the widow Bindu Bashini in 1882 The widow preferred an appeal, but while the appeal was pending, she died and the appeal was continued not by Ganga Mohan s reversionary heir but by the widow s legal personal representative, her daughter, and a decree was passed on appeal on the 23rd of June 1882, affirming that of the first Court. In 1884, the mortgagee obtained possession. A suit was instituted in 1885 by the present plaintiff against the mortgagee, impugning the mortgage as fraudulent, and not for legal necessity and, therefore, as being of no legal effect against him. That suit resulted in a dismissal which was affirmed by the lower Appellate Court and also by the High Court. It was determined in the lower Appellate Court that the foreclosure decree in the former suit did not operate as a bar against the plaintiff, and the High Court in dealing with the matter said that it passed no opinion as to any right that the appellant might have to redeem. The plaintiff has now brought this present suit for redemption, making as defendant the original mortgagee who is still alive, and a limited company who does not contest the plaintiff s claim. Both the Court of first instance and lower Appellate Court decided in the plaintiff s favour. Mr. Justice Coxe, sitting as a Single Judge, has decided adversely to him and dismissed the suit. From his judgment, the present appeal is preferred.

(2.) The only question that arises on this appeal is, whether the result of the first of the suits that I have mentioned, the foreclosure suit, is a bar to the plaintiff s claim. I have stated that the appeal in that suit was continued not by the reversionary heir on whom the estate devolved at the death of the widow but by the widow s daughter, and she did not in any sense represent the estate of Gunga Mohun Bose and had no interest in that estate. On the other hand, the present plaintiff s father, the reversionary heir, was a person on whom it had devolved. He applied to be allowed to continue the appeal, but his attempt failed for a reason which was admittedly erroneous. The case was not treated as coming within the operation of Section 867 of the Code of Civil Procedure of 1882 and we are free from any difficulty that section might create. The plaintiff on whom, admittedly, (apart from foreclosure), the equity of redemption would have devolved, and in whom it would now be vested, would prima facie be entitled to redeem. And sc the question arises whether he has been deprived of that right by the decree in the foreclosure suit. The decree in that suit was in the Court of first instance against the widow and it may be that this decree, had there been no appeal, would have been binding as against the reversioner even though the mortgage was created by the lady herself. That is a point on which I express no opinion at this stage, because I do not think it is necessary, and 1 reserve my opinion until occasion arises for its decision. But, whatever may have been the effect of that decree, had it stood by itself, it was superseded by the decree passed on appeal. The decree of the Court of first instance could not, in the circumstances, be pleaded as res judicata, and the effect of a decree on appeal was indicated in Noor Ali Chowdhuri v. Koni Meah 13 C. 13 which professes to follow earlier decisions. It is there pointed out that where there is a decree on appeal which confirms the decree against which the appeal is made, it is, the appellate decree to which regard must be had, and the appellate decree supersedes the original decree. I would pause here for a moment to draw attention to a possible source of error in decrees of Appellate Courts by reason of failure to observe the provisions of the Code, and in this connection I will refer to the Code of 1 882, which contains an expression of the Jaw that is still applicable. By Section 551 it is provided that, in the circumstances there indicated, the Court may dismiss the appeal. But where the case goes to a hearing, then the powers of the Court are defined in Section 577 which provides not that the appeal is to be dismissed but that "the judgment may be for confirming, varying or reversing the decree against which the appeal is made." It may be that when the appeal is incompetent as being out of time or as coming within the provisions of Section 586, the proper course will be to dismiss it. Apart from that, it seems to me that, ordinarily, the proper course is, as provided in the section, to confirm, vary or reverse the decree against which the appeal is made. But to return to the facts of this case, what is the answer to the right to redeem vested in the present plaintiff? It is said the decree in the foreclosure suit is a bar. But that mast be the decree in appeal, and to that decree the present plaintiff was not a party nor was there any one with any interest in the estate, who was a party to the litigation at that stage. The person against whom that decree was passed was one who did not represent the estate but represented only the widow s personal interest. Therefore, the decree on appeal cannot afford an answer to the plaintiff s claim to redeem. Admittedly, if the suit had been commenced against the widow s representative, it would have been insufficient and it seems to me that it is equally insufficient when the only effective decree is one passed against a defendant who did not represent the estate. I, therefore, think the judgment of Mr. Justice Coxe must be set aside and the decree of the lower Appellate Court restored.

(3.) The costs in the High Court must be borne by the respondent, the original mortgagee. N. Chatterjea, J.