HARIHAR PROSAD DAS Vs. UMESH CHANDRA DAS MOHAPATRA

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of possession of certain land on a declaration of the plaintiffs title thereto under the following circumstances: The land originally belonged to one Kuran Samal who mortgaged it to the plaintiff on 15 Agrahayan 1315. The plaintiff brought a mortgage suit, No. 870 of 1917, and as Kuran Samal was then dead, he made his widow Balaram Dasi a defendant as also one Guina Samal who was a subsequent transferee in respect of a portion of the mortgaged property. He obtained a preliminary decree on 9th September 1917 and thereafter the final decree. He put the decree into execution and himself purchased the property and took delivery of possession through Court on 31 May 1927. He was dispossessed on 28 November 1927 by defendant 1 who alleged that he had purchased the property from two persons who were the reversionary heirs of Kuran Samal. The plaintiff repudiated this allegation and brought the suit to recover possession as aforesaid and, in the alternative, he made the prayer that if defendant 1 be held to have acquired any title, then he should be made to redeem the mortgage on the footing of the mortgage decree.

(2.) The suit was contested by defendant 1 and his bhag tenant, defendant 2. They raised various defences challenging the mortgage decree itself and one of their defences was that Balaram Dasi, defendant 3, had entered into a second marriage with one Kailas Jana after the death of her husband Karan Samal, that therefore she was not the heiress of Karan Samal at the time of the mortgage suit, and that consequently the mortgage decree was a nullity. The learned Munsif held that the plaintiff's mortgage was a genuine transaction; but he found that although at the time of the preliminary decree Balaram Dasi might have been correctly represented as the widow and heiress of the deceased mortgagor Karan Samal, she got married to another person before the passing of the final decree and therefore before that decree she had lost her character as heir to the deceased mortgagor and must be considered to be dead in the eye of the law. In that view he held that the final decree in the mortgage suit was a nullity. Accordingly he dismissed the plaintiff's suit. The plaintiff appealed and the question arose whether, in the circumstances, the learned Munsif was right in holding that defendant 3, Balaram Dasi, was not the heiress of Kuran Samal at the time of the mortgage suit. The learned Judge agreed with the Munsif both as to his finding of fact and as to his view of the law and so he dismissed the appeal. Hence this second appeal by the plaintiff.

(3.) The point of law upon which the decision of this appeal turns is the question whether in the aforesaid circumstances the final decree in the mortgage suit is a nullity, it being taken for granted that the preliminary decree was a valid one. It was pointed out that an application for a final decree is really an application to enforce a judgment and not in the nature of an application in an execution proceeding: see the case of Amlook Chand V/s. Sarat Chunder (1911) 38 Cal 913 which was confirmed by the Judicial Committee in the case of Munna Lal v. Sarat Chunder AIR 1914 PC 150. According to the explanation to Sub-section (2) of Section 2, Civil P.C., a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of and it is final when such adjudication completely disposes of the suit. And so it was held by a Pull Bench of this Court in the case of Taleb Ali V/s. Abdul Aziz , that a final decree is dependent on and subordinate to the preliminary decree in a mortgage suit. This being the case, where the basis of the final decree, viz. the preliminary decree, is valid and operative, it is difficult to see how the final decree following thereon can be held to be void and not merely voidable for some such defect as is complained of now. The case of Lachmi Narain V/s. Balmukund AIR 1924 PC 198 was a suit for partition in which there was a preliminary decree. Thereafter the plaintiff failed to appear before the trial Court and the suit was dismissed for want of further prosecution.