UTANKA LAL MOOKERJI Vs. TARAK NATH SEAL

JUDGEMENT

(1.) This appeal arises out of a final decree made by the Subordinate Judge in a suit on a mortgage. The appeal is by the defendant. The mortgage suit was settled between the parties by a compromise and what is said to be the preliminary decree was passed on 26 May 1916. In that decree it was provided amongst other things that the appellant should pay the decretal amount to the extent of Es. 12,500 within 15 days of the decree and the remainder Rs. 11,500 in certain instalments spreading over several years. The last instalment was said to be payable on 30 Baisakh 1333 B.S. There was a further stipulation that in default of payment of two instalments the whole amount of the balance then remaining due would at once be recoverable. It was stipulated that the mortgage lien would remain intact and the plaintiffs would be entitled to execute the decree by obtaining a final decree with reference to their dues still remaining unpaid. One of the persons named Kali Prosanna Seal who was entitled to the decretal money died on 15 February 1922. The instalments were paid up upto 1329. Default was made of the instalment payable in 1330. Thereupon the plaintiffs made an application for the final decree according to the terms of the Compromise. The objection on behalf of the defendant was that the suit had abated and, therefore, the plaintiffs were not entitled to a final decree as prayed for. An application was made for substitution of the legal representative of the deceased person Kali Prosanna Seal by a petition which was filed on 7th June 1923. The petition was alleged to be a joint petition by Tarak Nath Seal, the legal representative of the deceased Kali Prosanna and of the defendant the appellant before us. In that petition it was stated that the amount of Rs. 1700 payable for the Baisakh kist of 1329 was received by Tarak Nath Seal and the prayer was that Tarak Nath Seal might be substituted in the place of his father and the payment of Rs. 1700 recorded. The plaintiffs admitted that payment and, therefore, their contention before the Sub-ordinate Judge was that although there was no order substituting the representative of the deceased plaintiff on the record made by the Court, as a matter of fact, by consent of parties he was substituted. There was also an objection raised by the defendant that the application was barred by limitation. The Sub ordinate Judge rejected the plea of limitation. He, however, held that there was abatement of the suit so far as the share of Kali Prosanna Seal was concerned. In that view he made a final decree for half of the amount due under the compromise to which sum the surviving plaintiffs were entitled according to his view, and he also held that a half of the properties would be liable under the final decree.

(2.) Defendant 1 has appealed from that judgment and decree of the Subordinate Judge and the plaintiffs have preferred a cross-objection against that part of the decree which is against them. On behalf of the defendant it is urged that the mortgage decree is one and indivisible and if the suit fails so far as one of the mortgagees is concerned the whole suit abates. The decree made by the Subordinate Judge therefore cannot be maintained. It is contended on behalf of the respondents that the whole question that was discussed by the Subordinate Judge was irrelevant. The fact was that the suit was brought by a firm. The compromise decree was with the firm and, therefore, under Order 30, Rule 4, Civil P.C, if one of the persons who was a member of the Firm died during the pendency of the suit it would not be necessary to join the legal representative of the deceased as a party to the suit; and therefore assuming that the suit was a pending suit after the compromise decree there is no question of abatement on account of the death of Kali Prosanna Seal. It is further contended that it is not a case in which the decree was made under Order 34, Rule 4, Civil P.C. It was a compromise decree in which according to the agreement between the parties the decretal amount was made payable by instalments spreading over a large number of years. Although there was a stipulation that on failure of payment of two instalments the decree-holders would be entitled to apply for a final decree being made, that application could not be an application under Order 34, Rule 5, Civil P.C. The compromise between the parties took the case quite out of the provisions of Order 34, Civil P.C. And therefore the plea that the suit abated on the death of one of the partners of the firm cannot be maintained. This argument of the respondents covers both the appeal as well the cross-objection preferred by them. It was further urged that the Subordinate Judge had on insufficient grounds rejected the contention of the plaintiff's that the application for substitution of the legal representative of Kali Prosanna Seal was jointly made by Tarak Nath Seal, the representative as well as the defendant.

(3.) The last point is quite a short one and may be disposed of in a few words. It appears that the vakalatnama which bears the signature of defendant 1 was tendered to a pleader named Panchanan Mukerji by a gomasta of Utankalal Mukerji, the defendant. On the margin of the vakalatnama it is written that this vakalatnama is presented through me on behalf of the defendants. Finis 6 June, 1923.