RAM AUTAR SAHU Vs. BBATE KRISHNA

JUDGEMENT

(1.) This is an application by Ram Autar, Murlidhar and Bhagwan Das for the revision of an order passed by the Additional Subordinate Judge of Benares impleading them in the array of judgment-debtors. The facts of the case can be shortly stated as follows: It appears that one Gopal Das and his sons executed a mortgage in favour of Maksudan Das, the security being a house in Benares and certain Zamindari property situate in Jaunpur. In due course Maksudan Das brought a suit upon this mortgage against the mortgagors, and on 27 August 1927 he obtained a decree against Gopal Das and his sons. At some time during the pendency of this mortgage suit the mortgagors Gopal Das and his sons executed a simple mortgage of the Zamindari property in favour of the applicants Ram Autar and Murlidhar, Maksudan Das never impleaded Ram Autar and Murlidhar in his suit, which was then proceeding, presumably, because the fact of the subsequent mortgage was never brought to his knowledge. Subsequently to this simple mortgage in favour of Ram Autar Murlidhar, Bhagwan Dasa, son of Ram Autar, purchased a half-share of the Jaunpur Zamindari property in execution of a simple money decree and it has been found that in this purchase Bhagwan Das was acting on behalf not only of himself but of his father Ram Autar and his brother Murlidhar who were all members of a joint family.

(2.) Ram Autar and Murlidhar brought a suit upon their mortgage and in that suit impleaded the heirs of Maksudan Das who had died in the meantime. Ram Autar and Murlidhar claimed prior rights to Maksudan Das by reason, of the fact that the money which they had lent had been used for the purpose of paying off prior charges. This claim by Ram Autar and Murlidhar to prior rights was resisted by the heirs of Maksudan Das and eventually it was held that Ram Autar and Murlidhar's mortgage was subsequent to that of Maksudan Das and that they had no prior claims whatsoever. Against that decision Ram Autar and Murlidhar have filed a first appeal in this Court and the matter is pending. The present opposite parties being the heirs of Maksudan Das put the mortgage decree obtained by the latter in his life-time in execution and prayed that Ram Autar and his two sons Bhagwan Das and Murlidhar should be made parties in the execution proceedings. Ram Autar, Murlidhar and Bhagwan Das objected and contended that they could not be impleaded in the array of judgment-debtors in the execution proceedings. After considering the whole facts of the case the learned Subordinate Judge held that they were proper parties in these execution proceedings and impleaded them in the array of judgment-debtors.

(3.) The three objectors have now applied to this Court for a revision of the order contending that they should not have been impleaded as they were not parties to the original suit. They take a further ground that as Ram Autar and Murlidhar were actually challenging the mortgage upon which the decree was founded they should not be impleaded in these execution proceedings. Section 47(1), Civil P.C., provides that all questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. Sub-s, 3 of the same section provides that where a question arises as to whether any person is or is not the representative of a party such question shall for the purpose of this section be determined by the Court. It is the contention of the opposite parties that Ram Autar, Murlidhar and Bhagwan Das were representative of one of the original parties in the suit, viz. the mortgagor. The Court has decided that the objector applicants were the representatives of the mortgagor and this decision is clearly a decision under Section 47, Civil P.C. Decisions under this section are to be regarded as decrees by reason of Section 2(2), Civil P.C., and are appealable. The opposite parties take the preliminary objection that no revision lies in this case and that the objectors should have proceeded by way of appeal. In our view the order passed in this case must be treated as a decree and the objectors should have appealed and have no right to apply for a revision under Section 115, Civil P.C. That of course is sufficient to dispose of this application, but we have considered the contentions put forward on behalf of the applicant objectors and we are satisfied that there is no force in any of them. In our view it has been decided by this Court that persons in the position of the present objector applicants are representatives of the mortgagor and can be impleaded in the execution proceedings.