SITARAM DATTAJI RANGNEKAR Vs. ANANT HARI KAMAT AGARKAR

JUDGEMENT

(1.) The few facts, which are necessary for the purpose of dealing with the point raised in this second appeal, are these. A decree was passed by the trial Court on November 30, 1912. That decree was confirmed by the District Court in appeal and ultimately by the High Court. The confirmation by the High Court was on December 17, 1915. It may bo mentioned that there were several defendants ; and as defendant No. 13, who was one of the appellants in the appeal to the High Court, died, his heirs were brought on the record in the appeal to the High Court. It was a preliminary decree on a mortgage which was confirmed by the High Court. Thereafter defendant No. 7 died on January 3, 1917. The plaintiffs then made an application on February 21, 1918, to have a final decree on the mortgage as required by the Code of Civil Procedure. In this application the heirs of defendant No. 7 were mentioned, but apparently the date of the death of defendant No. 7 was not indicated and a fortiori no steps were taken to have the abatement set aside, as the death of defendant No. 7 had taken place before the period of limitation allowed for bringing the heirs on the record. But on this application notices were issued to the heirs of defendant No. 7. They did not appear, and the result was that on October 26, 1918, the Court passed a final decree on the mortgage. The plaintiffs then applied to execute this decree. In execution the heirs of defendants Nos. 13 and 7 raised an objection that the final decree was a nullity as they were not brought on the record as required by the Code.

(2.) The first Court disallowed this plea. It may be mentioned that the name of the deceased defendant No. 7, which was continued on the original decree unaltered, was changed on the application of the plaintiffs made on August 1, 1923. On that day the Court ordered the names of the heirs to be inserted in the original decree, and the order disallowing the objection of the heirs of defendants Nos. 7 and 13 was made on October 4, 1923.

(3.) There was an appeal by the heirs of defendants Nos. 7 and 13 to the District Court and the same points were raised on their behalf. But the learned District Judge disallowed these points.