YAMUNABAI Vs. MAROTI

JUDGEMENT

(1.) 1. A suit was filed by Narsingdas and Jainarayan against Yamunabai, the appellant before me, Matori, the respondent, and others. The suit was based on a mortgage deed executed by Yamunabai, and Maroti was impleaded as a subsequent mortgagee. A preliminary decree was passed against both Yamunabai and Maroti; both were given the right to redeem the mortgaged property. Form No. 9, App. D to Schedule 1, Civil P. C., was not used, possibly because Maroti, the subsequent mortgagee, had not asked for determination of the sum due in respect of his mortgage. It is not necessary to refer to the proceedings which led to the extension of the time fixed for payment. Yamunabai did not deposit the amount found due, and Maroti did deposit this sum. The trial Judge directed the substitution of Maroti for the original decree-holder and proceeded to pass a fresh preliminary decree against Yamunabai. Yamunabai has filed this appeal under Order 43, Rule 1(1), Civil P. C., paying Rs. 2 as court-fee. The appellant then must be confined to arguments against the order of substitution; it was open to her to appeal against the fresh preliminary decree, but she has not chosen to do so.

(2.) THE appellant's counsel relies on the decision of the Privy Council in Gopi Narain v. Bansidhar (1905) 27 All 325. Their Lordships there held that, on payment of the sum due into Court and acceptance of that sum by the plaintiffs, the decree was spent and became discharged and satisfied. They added: "There was therefore nothing left to be done in the execution department." But, as remarked by Findlay, J. C., in Balaji v. Vallabhdas , this decision was passed at a time when a mortgage suit was decided by what is now the preliminary decree, and the subsequent procedure was taken in the execution department. Under the present law the Court has to pass a final decree, and it seems clear that the Judge is not funetus officio when the payment is made and accepted. As is stated in Digambar v. Ganpat (19161 12 NLR 50, a mortgage suit is pending, at any rate, until a final decree is passed. The Judges, who decided Suryabhan v. Renuka AIR 1926 Nag 84 had not to consider this question; if Maroti had not chosen to ask that he should be substituted as plaintiff, it may well be that he could subsequently bring a separate suit. Now the law appears quite clear. Under Section 92, T. P. Act, a subsequent mortgagee, after redeeming the prior mortgagee, is subrogated to the rights of that mortgagee, the interest of the prior mortgagee has devolved upon him, and the suit may by leave of the Court be continued by him against the mortgagor. The position is the same as' that which arises when a plaintiff transfers his rights pendente lite. The fact that he was originally a defendant cannot affect the power of the Court: he is omitted from the list of defendants, as no further relief against him is claimed. The substitution was proper, and the appeal must be dismissed. Costs on the appellant. Counsel's fee Rs. 40.