HASAN BANU Vs. RADHA KISHAN

JUDGEMENT

(1.) This is an application in revision against an order passed by the District Judge of Kanpur. The facts of this case are somewhat complicated, but they have been stated with great clarity by Mr. Shambhu Nath Seth, the learned Counsel for the opposite party. They are briefly these. Two brothers, Mohammad Nazir and Mohammad Yasin, on 25-11-1932, purchased a plot of land from the Improvement Trust of Kanpur. They were not in a position to pay the entire purchase money. They paid a portion and undertook to pay the balance in twelve half-yearly instalments. It wag also provided that the plot o? land with the constructions which might be raised on it, were to stand hypothecated by way of security. On 27-3-1933, Nazir sold his interest to Yasin with the result that the latter became the sole owner of the entire plot. Yasiu, thereafter, started certain construction on it and raised the funds by borrowing from one Lakshmi Narain. They made a mortgage in his favour of the plot together with the constructions. Part of the consideration was paid to Yasin, but the bulk of it was left in the hands of Lakshmi Narain for the discharge of the debts due from the Trust. On 5-1-1935 Yasin sold the equity of redemption of the western half of the house, to his wife Mt. Sirajan, in lieu of her dower debt. The result of this transaction was that her purchase was subject to the mortgage of Lakshmi Narain. On 21-7-1935 Yasin purported to sell the entire house to Lakshmi Narain, although a part of it he had already conveyed to his wife in lieu of her dower debt. Yasin died, Mt. Sirajan and Nazir as the brother of Yasin, remained in possession of the house.

(2.) On 21-7-1939, Lakshmi Narain brought a suit for arrears of rent and also for possession of the entire plot. In the alternative, there was a prayer that if the whole plot could not be made available to him, a decree for possssion might be passed in respect of the eastern section and a mortgage decree in respect of the western half which had been sold to Mt. Sirajan.

(3.) The learned Munsif decreed the suit for possession and arrears of rent with respect to the eastern half and passed a mortgage decree with respect to the western half. It might be noted that, in this suit, the other heirs of Yasin were also made defendants. Two of them were, Hasain Bano and her daughter, Mt. Saghirunnisse. An appeal was preferred against this decree by Hasan Bano and Saghirunnigsa and an application to appeal in forma pauperis under Order 44, Rule 1, Civil P.C., was also presented along with the memorandum of appeal. Mr. Baylis, the learned District Judge, directed the learned Munjif to make an enquiry on the question of pauperism. The learned "Munsif submitted his report in favour of the two ladies. Mr. Baylis, thereupon allowed the appellants to appeal in forma pauperis. On behalf of Radha Kishan, who is the son of Lakshmi Narain - evidently" he is now dead - an application was made to recall the previous order, as it had been passed without notice to him. Mr. Crofts went carefully into the matter and came to the conclusion that the order of Mr. Baylis, had been passed ex parte. He, therefore, recalled it. The present application in revision is directed against this order of Mr. Crofts.