MAHARANI NILIMAPROVA Vs. KADAMBINI DASI

JUDGEMENT

(1.) The petitioner in this case, Maharani Nilimaprova Nandy, lent a sum of Rs. 15,000 to opposite party 2, Lalit Mohon Saha on the mortgage of a certain property in Kalighat, being premises Nos. 71B and 71C, Kalighat Road, and obtained a decree on the mortgage on 19th September 1940. On 31 January 1941, the petitioner filed an application for execution of the decree. The opposite party No. 2 thereupon applied for reopening of the decree Under Section 36, Bengal Money Lenders Act, but the application was rejected. He then applied to a Debt Settlement Board for relief under the Bengal Agricultural Debtors Act, but this too was refused. Thereupon it is said he caused a suit to be instituted by his mother Kadambini Dasi, who is opposite party No. 1 in this rule, claiming a two-thirds interest in the property as heir of two deceased minor sons, on the allegation that the property had been purchased by opposite party No. 2 with funds belonging to the joint family of which he and the said two minors were members. In this suit Kadambini prayed for a declaration of her title to a two- thirds share of the property and of her right of residence therein, and a further declaration that the mortgage was a fraudulent and collusive transaction not binding upon her, and finally for a declaration that the property was not liable to be sold in execution of the mortgage decree. There was no prayer in terms of a permanent injunction to restrain the petitioner from bringing the property to sale. The day after the suit was filed the opposite party No. 1, however, made an application asking for a temporary injunction to restrain the sale. In the meantime the petitioner had filed her written statement in the suit, in which among other things she raised the question of insufficiency of court-fees, and further contended that the suit was hit by Section 42, Specific Relief Act, inasmuch as this was a case in which the plaintiff should have asked for consequential relief, but had not done so. The learned Subordinate Judge took up the question of court-fees which was the subject-matter of issue 5, along with the application for temporary injunction and disposed of both these matters by the same order. He held that the court-fees paid were sufficient, and as regards the temporary injunction, he made an Order as asked for, holding that this was necessary in Order to avoid multiplicity of suits and further complications. It is against this Order which was made on 17th July 1943, that the present Rule is directed.

(2.) As already stated, the Order falls into two parts, one dealing with the question of court- fees and the other with that of the temporary injunction. So far as the question of temporary injunction is concerned, Mr. Banerjee on behalf of the opposite party contends that the Order was appealable and that it was consequently not open to revision. Mr. Banerjee is quite right in saying that this Court will not ordinarily interfere in revision where the petitioner has a right of appeal whether the appeal lies to the High Court or to a Court subordinate to a High Court. At the same time, it is difficult to hold that where the appeal lies to the lower appellate Court, revision is shut out by the express words of Section 115, Civil P.C. That section provides: "The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto." The precise meaning of the word "thereto" has given rise to some controversy, but it seems to us that it can only refer to the High Court and not to a Court subordinate to the High Court. This was the view which was expressed by Mitter J. in Sashi Kanta, V/s. Nasirabad Loan Office Co. and this was approved by a Division Bench of this Court in Nafar Chandra V/s. Kalipada Das although the precise point which is involved in the present case did not arise there. The Order in question in that case was one in which there was or might be an ultimate appeal to the High Court, whereas it is not disputed that the Order here is one which is not subject to appeal to this Court at all. There is only one appeal provided by the Code, land that lies to the District Judge. It seems to us therefore that the only question we are called upon to decide is not whether we have the power to interfere Under Section 115, but whether this is a proper case in which we should interfere.

(3.) Having considered all the facts and circumstances, we are of opinion that there is absolutely no justification for directing a temporary injunction of the mortgage sale. The object of Kadambini's suit is to protect her interest and a temporary injunction could be granted only if that interest was likely to be in jeopardy as a result of the sale. The property, which was the subject-matter of the sale in execution of the mortgage decree could not be said to include such interest. What would pass at the sale would be the interest of the judgment-debtor Lalit Mohan Saha, and that was wholly outside the scope of Kadambini's suit. This being so, there is no reason why the sale should be stayed pending the decision of the question of title raised by Kadambini. (His Lordship then proceeded to consider the question of court-fees and after expressing his opinion that the question of court-fees might be said in a way to be bound up with the question of the maintainability of the suit Under Section 42, Specific Relief Act, directed.) The Order which the learned Judge has already passed on the question of court-fees cannot really be maintained unless the other issue is disposed of. We accordingly set aside that Order and direct that the learned Judge should take up that other issue first and come to a decision as to the real nature of the suit. If he holds that it is a mere declaratory suit, he would have to consider whether the suit can be maintained. If he holds that it is maintainable, then no further question arises regarding court-fees. If, on the other hand, the learned Judge thinks that in the absence of a prayer for consequential relief the suit cannot lie, the suit will fail on that very ground, and the question of court-fees will not arise, unless he thinks that an opportunity should be given to the plaintiff to amend the plaint. If the amendment is allowed, then only will the question of court-fees have to be considered. It would be open to the plaintiff to put her own valuation on the consequential relief, subject to the provisions of Section 8 (c), Court-fees Act. It is not necessary for us to indicate at this stage what are the principles which the learned Judge should apply in valuing the consequential relief which the plaintiff might ask for. The in these terms. We make no Order as to costs. Let the record be sent down as early as possible. Khundkar, J.