SUNDARAMMAL Vs. SUNDARA REDDI

JUDGEMENT

(1.) The facts of this second appeal may be stated as follows: Two persons named Lakshmanan Chetty, and Muthiah Chetty a minor represented by his next friend, obtained a preliminary decree for sale on the foot of a mortgage in O. S. No. 14 of 1919. Defendants Nos. 1 and 2 are the heirs of the original mortgagor; Defendants Nos. 3 to 8 were subsequent purchasers of the equity of redemption of separate portions of the mortgage properties. Defendants Nos. 3, 4, 5 and 8 also claim right of subrogation to some prior mortgages which they had discharged. This right was recognized in the preliminary decree which directed sale of the items purchased by them subject to the prior mortgage. An appeal against this direction was filed by the mortgagor. After the appeal was filed the rights of the decree-holders were assigned by a deed (Ex. A) dated 26 July 1920, and the assignee applied to have his name brought on record as the 3 appellant ( Ex. 0, dated 5 of August 1921). The order of Court was "the petitioner will be added as the 3 appellant." The appeal was dismissed on the 31st of March 1922. The assignee decree-holder then applied before the Subordinate Judge for the passing of a final decree. The Subordinate Judge dismissed the petition. There was an appeal to the District Judge of South Arcot and the District Judge, reversing the order of the Subordinate Judge, passed a final decree as prayed for. The present second appeal is filed by the 9 defendant who was added as the legal representative of the 4 defendant, who died, by an order dated the 29 of November 1923.

(2.) The objections were taken by the appellant to the passing of a final decree: (1) That the assignment by the mortgagees was really obtained benami for the benefit of the 5th defendant; (2) the assignment in respect of the minor 2nd plaintiff was invalid as no sanction of the Court was obtained under Order 32 of the Civil Procedure Code. Taking up the first point, the Subordinate Judge found that the assignment was really for the benefit of the 5th defendant. This finding was not questioned before the District Judge whose order was passed on the footing of the finding. Before me Mr. Varadachariar also argued the case on the basis of that finding. Both parties concede before me that this is not a matter arising in execution, but is a proceeding in the suit vide: Order 34, Rule 5, so that Order 21, Rule 16, of the Civil Procedure Code, does not apply. The only question is, as the suit has not yet been disposed of, what is the proper procedure to be observed? The result of the Subordinate Judge's finding is that the 5 defendant, a purchaser of the equity of redemption in one of the mortgaged properties, has now become, by the assignment, entitled to the mortgagee's rights. Only in obtaining the assignment, with a view to keep his position as a purchaser of the equity of redemption and his position as assignee of the mortgagee's rights, distinct, he obtained assignment in the name of a benamidar who for this purpose may be regarded as a trustee for the 5 defendant. The District Judge held on a strict construction of Order 34, Rule 5 that the Court is bound to pass a final decree when the defendants have not made the payment of the mortgage amount into Court.

(3.) Mr. Srinivasa Ayyangar, who appeared for the appellant, has suggested in some portion of his argument (though I do not think very seriously) that under Order 34, Rule 5, Clause (2) the Court shall pass a decree on application made on that behalf by the plaintiff. And here the assignee-decree-holder is not a plaintiff. The assignee- decree-holder has certainly become after being added to the record an additional appellant and in becoming an additional appellant I think he has also become an additional plaintiff. In Brij Indar Singh V/s. Kanshi Ram [1918] 45 Cal. 94 the Privy Council held that where a party had been brought on record as the representative of an original plaintiff in a proceeding in appeal against an interlocutory order, he must be regarded as brought on record for all the purposes of the suit and he need not be added again when the case went back to the first Court. At page 110, (45 Cal.,) they refer to the added party as a plaintiff though he was not an original plaintiff. The plaintiff, as representative of the original plaintiff, and the defendants representatives of Joti Lal, had been introduced in the Chief Court. No doubt, that was only done in the course of an interlocutory application as to the production of books. But the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages.