MAHADEO PANDEY Vs. SOMNATH PANDEY

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for redemption. A mortgage by conditional sale dated 47 June 1888, was executed by Ramsaran, the grandfather of Somnath and the great-grandfather of Ranjit. In 1909 after the new Civil P.C. had come into force, the mortgagees brought a suit for foreclosure and impleaded all the members of the family including the present plaintiff Somnath. Ranjit, plaintiff, was not even born then. The plaintiffs proposed to make Gaya, the father of Somnath, his guardian. It is not quite clear how the interest of Gaya was in any way adverse to Somnath, but Gaya apparently declined to act as guardian, with the result that the Court appointed the Nazir of the Court as the guardian of Somnath minor. The other members of the family compromised the claim, but an ex-parte decree was passed against Somnath under the guardianship of the Nazir on the 25 of September 1909. It is not suggested that there was any irregularity up to this stage in the proceedings.

(2.) In 1910 the mortgagees made an application for the preparation of a final decree for foreclosure, but instead of impleading Somnath under the guardianship of the Nazir they impleaded him under the guardianship of his own father Gaya. Notice was issued to Gaya for himself and as guardian of his own son Somnath but; he did not object. A final decree for foreclosure was then prepared. But in this final decree Somnath's name was mentioned without the addition of any words like "under the guardianship of the Nazir or Gaya." Subsequently the mortgagees applied for formal delivery of possession and again impleaded Somnath under the guardianship of his father Gaya.

(3.) Now Somnath and his nephew Ranjit have brought this suit for redemption on the allegation that their rights have never been foreclosed. The Court of first instance dismissed the suit but on appeal the learned District Judge has decreed it. In my opinion this case raises substantial questions of law which require determination by a Division Bench. There is authority for the proposition that in preparing a final decree it is not absolutely necessary to issue fresh notice to the judgment-debtor. When the time fixed for the preliminary decree for payment has expired the mortgagors run the risk of a foreclosure decree being prepared, vide the case of Pandu Prabhu V/s. Juje Lobo (1904) 27 Mad 40, and the case of Tara Pado Ghose V/s. Kamini Dassi (1902) 29 Cal 644. There is, however, an observation in the case of Bibi Tasliman V/s. Harihar Mahto (1905) 32 Cal 253 that the Court itself has an inherent power to set aside an ex-parte decree which had been passed without notice to the mortgagor. All these cases were under the Transfer of Property Act. The learned District Judge in this case has conceded that it was not absolutely necessary to issue notice. What, however, he has held is that the Court decided to issue notice and did issue notice to Gaya and not to the Nazir. This, in the opinion of the learned Judge, amounted to an irregularity.