HEMENDRA LAL SINGH DEO Vs. FAKIR CHANDRA DATTA

JUDGEMENT

(1.) The defendant is the appellant before us and the facts which have given rise to this appeal, shortly stated, are as follows. On the 17 April 1913 the plaintiffs obtained a preliminary decree in a mortgaged suit for Rs. 1,08,964-9-5 against the defendant in the Court of the Subordinate Judge of Bankura. An appeal was carried against the said decree to this Court, being Appeal No. 39 of 1914, by the defendant, Raja Mahendra kal Singh Deo. This appeal came on for hearing before Mr. Justice Fletcher and Mr. Justice Shams-ul-Huda on the 10 January 1918 when a petition was put in on behalf of both parties to the effect that it had been agreed between the parties that the plaintiffs would get a decree for Rs. 70,000 inclusive of all costs and interest up to the said date, and that the said amount would be paid by the defendant, Raja Mahendra Ial Singh Deo, within two years there from with interest at the rate of Rs. 4-8-0 per cent, per annum till realization, and that in default of payment within the said period of two years, the said amount of Rs. 70,000; with interest at the said rate till realization, would be realized by the sale of the properties mentioned in the plaint. Thereupon, it was ordered that the said petition should be filed as of record and that the defendant and the plaintiffs should give effect to and be bound by the terms, thereof. The plaintiffs were not paid any portion of the moneys due to them under the decree of the Court dated the 10th January 1913, within two years from that date, but it appears that one of the plaintiffs, Prayag Chandra Dutt, died on the 26 Jaistha, 1326 B.S., corresponding with the 9 June 1919, leaving him surviving Ins sons, Radha Raman Dutt, Sham Sundar Dutt and Jalad Barau Dutt, as his heirs and legal representatives and that the defendant Raja Mahendra Lal Singh Deo died 01 the 3 December 1920, leaving him surviving his son Hnnendra Lal Singh Dei as his heir and legal representative on the 3 June 1921 the plaintiffs applied for an order for the substitution on the record of the heirs of the deceased plaintiff and of the heir of the deceased defendant The heir of the deceased defendant win was sought to be substituted on the re cord opposed the application on the ground that it was barred by limitation, but 01 the 20 of July 1921, the learned Sub ordinate Judge by his order of that date held that, having regard to the terms the decree of this Court which final: disposed of the suit instituted by the plaintiffs, there was no pending suit ii which the application for substitution o the heir of the deceased plaintiff and o the heirs of the deceased defendant was entertain able. The learned Subordinate Judge further held that the plaintiffs might execute the decree by making propel substitution in an application for execution of the decree. Thereupon, the plaintiffS applied for execution of the decree in question and it was ordered on that application that after the necessary substitutions had been made notices should issue under Order XXI, Rule 22 of the Civil P. C..

(2.) Against the last mentioned order the Appeal No. 222 has been preferred, while against the order previously referred to, Appeal No. 223 has been preferred. There is also a connected rule, being Rule No. 539 of 1921, under which further proceedings have been stayed. On behalf of the appellant it has been contended before 11s that the decree made on the 10th January 1918, by Mr. Justice Fletcher and Mr. Justice Shams-ul-Huda was in substance and in form a preliminary decree in a mortgage suit and that a final decree had still to be made in the suit before the plaintiffs could realise the moneys due to them by the sale of the properties mentioned in the plaint and that, inasmuch as the deceased plaintiff's heirs had not been brought on record within a period of six months from the date of the death (that being the period under the Limitation Act before the last amendment), and the deceased defendant's heir had not been brought on record within three months 3 from the date of the death (that being the period under the present Limitation 1 Act), the plaintiffs remedies, if any, were barred. It is argued that, assuming that f a final decree had to be made if the heir of the sole judgment-debtor was not ) brought on the record within the time limited by law, Order XXII, Rule 4 of the Code 1 of Civil Procedure applies and the mortgage suit abates, and in support thereof reference is made to the case of Bhutnath; Jana V/s. Tara Chand Jana 59 Ind. Cas. 177 : 33 C.L.J. 115 : 25 C.W.N. 595. Our attention has also been invite to the case of Dakoju Subbarayudu V/s. Musti Rama Dasu 68 Ind. Cas. 942 : 45 M. 872 : 15 L.W. 309 : 42 M.L.J. 301 : 30 M.L.T. 202 : (1922) M.W.N. 373 : (1923) A.I.R. (M.) 237 as to the effect of the deceased plaintiff's heirs not having been brought f on the record within the time limited by law. It is further argued that if the application of the 3 June 1921, referred's to above, is treated as an application for: execution of the decree, then time ran from the date of the decide made by this Court and not from the expiration of two years from that date, and in support thereof the judgment of their Lordships of the Judicial Committee in case of Sachindra Nath Roy V/s. Maharaj Bahadur Singh 74 Ind. Cas. 660 : 49 C. 203 : 48 I.A. 335 : 4 U.P.L.R. (P.C.) 57 : 30 M.L.T. 96 : 24 Bom. L.R. 659 : (1922) M.W.N. 338 : 26 C.W.N. 858 : (19220 A.I.R. (P.C.) 187 (P.C.) was referred to, the contention being that the application was barred under the three years rule. A further point was taken on behalf of the appellant that, having regard to the language of Section 45 of the Indian Contract Act, one plaintiff having died and his heirs not having been substituted, the entire suit had abated. On behalf of the respondent it has been argue that the decree, made by this Court on the 10 January 1918, was in no sense a preliminary decree in a mortgage suit as contemplated by Order XXXIV, Rule 4, of the Civil P. C., it was in no sense a conditional decree, and that the rule that the decree-holder in a mortgage suit ought not to be ordinarily allowed without previous notice to the judgment-debtor to take out execution on the allegation that the condition or contingency has been fulfilled, was excluded in this case by the consent of the parties." It was further contended that having regard to the these of the compromise decree and having regard to the provisions of Order XXII, Rule 12, Civil Procedure Core; it was unnecessary in execution proceedings to apply for substitution of the heirs of the deceased plaintiff and of the deceased defendant and that it was open to the plaintiffs to proceed to levy execution immediately on the expiration of two years from the date of the compromise decree.

(3.) Tae question really depends upon the view which may be taken of the nature of the decree made by this Court on the 10 January 1918. If it was merely a preliminary decree in a mortgage suit then, obviously, it follows that before execution could be levied, an order under Order XXXIV, Rule 5, Civil Procedure Code, nuking the preliminary decree final had to be obtained and in that view of the matter the plaintiff would no doubt be in considerable difficulty, having, regard to the events which had happened. If, however, the ingredients of a preliminary. decree in a mortgage suit are absent from the compromise decree in this case, if for the consideration 01 a reduction of interest from 12 per cent, to 4 per cent, and of the principal and interest from Rs. 1,40,758 to Rs. 70,000 ana for the further consideration of an unusual extension of the period of grace from six months to two years for the re-payment of the principal and interest due on the mortgage and, the defendant chose to waive tile advantage of the rule of law requiring preliminary decrees to be made final before execution could be levied, then does it lie in the mouth of the present appellant to argue that, without more, the compromise decree is incapable of execution Were of opinion that the intention of the parties, as far as the same can be gathered friction ,the compromise decree, was that inundatal on the expiration of two ceases from the date of the decree, the plaintiffs would be competent to realize the Moneys due to them cy the sale of the properties mentioned in the plaint. If that is so, it follows that, under the provisions" of Order XXII, Rule 12, Civil Procedure Code, it was unnecessary to apply in the suit, which had come to an end, for substitution of the heirs of the plaintiff and of the deceased defendant and we think that the orders passed by the Subordinate Judge on the 20 July 1921, allowing the execution to proceed cannot be seriously objected to. In this view of the matter, it becomes unnecessary for us to discuss at any length, the questions raised in the elaborate argument on behalf of the appellant. We will content ourselves by remarking that in the special circumstance of this case the question of limitation in the form in which it was raised in the case of Sachindra Nath Roy V/s. Maharaj Bahadur Singh 74 Ind. Cas. 660 : 49 C. 203 : 48 I.A. 335 : 4 U.P.L.R. (P.C.) 57 : 30 M.L.T. 96 : 24 Bom. L.R. 659 : (1922) M.W.N. 338 : 26 C.W.N. 858 : (19220 A.I.R. (P.C.) 187 (P.C.) has no application.