LAWS(PVC)-1944-12-81

CHINTAMONI SAHU Vs. JAHURI MAL

Decided On December 11, 1944
CHINTAMONI SAHU Appellant
V/S
JAHURI MAL Respondents

JUDGEMENT

(1.) The petitioner was the plaintiff in a suit for sale on the basis of a simple mortgage bond instituted on 5 October 1939. Originally, there were two defendants to the suit. A preliminary decree for sale was passed on 27 February 1941. The plaintiff then made an application for making the decree final, and sought to. implead the opposite party 1 in this Court as an additional defendant on the ground that he was in the position of a subsequent purchaser of portions of the mortgaged property. The opposite party 1 opposed the application for being added as a party defendant to the action on the ground that he had purchased those properties in execution of rent decrees obtained by the landlord of these holdings, and that he was really in the position of a person holding title paramount both to the mortgagor and to the mortgagee. The learned Subordinate Judge refused to implead the opposite party l as a defendant to the action chiefly on the ground that he was not a necessary party to the suit. In the course of his judgment, he made certain observations as regards the service of notices said to have been taken out by the purchaser, opposite party 1, by way of annulment of encumbrances under the provisions of the Orissa Tenancy Act. That led to the petitioner filing another application for review of his orders. That application also being dismissed, he has come up in revision against the order refusing to review his previous orders. Both these applications have been heard together.

(2.) It is manifest that the petitioner is in the horns of a dilemma. If his case that the-opposite party 1 is in the position of a pur-chaser of the equity of redemption is accepted, it is not necessary to implead the opposite party 1 at this stage of the preliminary decree being made final, inasmuch as the opposite party 1 will be bound by the decree, being a representative of the judgment-debtor. If, on the other hand, the case of the opposite party 1 is accepted, and it is found, after investigation, that he really is a purchaser not of the equity of redemption but, in execution of a rent decree with the right to annul encumbrances, which he purported to do by service of notice, he will have made out completely his objection to being impleaded as a party defendant to the suit. Hence, in either view of the case, the addition of the opposite party 1 as a party defendant to this action is not called for. He will be neither a necessary, nor a proper party to the suit. Furthermore, it must be remembered that though in certain cases it may be permissible to add parties after the preliminary decree has been passed, in the present case the position is clear that, by introducing a fresh party at this stage, a simple suit on a simple mortgage bond would be converted into a complicated title suit involving determination of questions of law and fact-quite foreign to a simple suit for sale. In that view of the matter also, in my opinion, it is not desirable that the opposite party 1 should be introduced into the record at this stage.

(3.) There is another difficulty in the way of the petitioner. Where the petitioner is aggrieved by an order of the Court below but has an alternative remedy by way of a suit, this Court does not ordinarily interfere. In view of all these considerations, in my opinion, this is not a fit case in which this Court can interfere by ordering that the opposite party 1 should be impleaded as a party defendant. I wish to make it clear that any observations made by the Court below on the merits of the claims of either party are wholly irrelevant for the present purposes, and would not affect the rights of the parties in any litigation to be launched hereafter by either of the parties. The applications are accordingly dismissed with costs. Hearing fee one gold mohur consolidated for both the cases. Das, J.