MUHAMMAD YUNUS Vs. CHAMPAMANI BIBI

JUDGEMENT

(1.) This is an appeal from the decision of the Subordinate Judge of Shahabad directing the preparation of a final decree in a mortgage suit. The mortgage bond is dated 16 December 1905 and was for repayment of a principal sum of Rs. 600 with interest hereon at two per cent, per month with half yearly rests. It was secured on two revenue paying properties and one house. A, payment of Rs. 75 on account of interest was made on 26 December 1906 and thereafter nothing further having been paid, the mortgagee brought the suit on 28 November 1916. Attachment before judgment was effected on 9 December 1916 as against a sum of Rs. 1859-14-6 lying in the Court at Sasaram as a deposit to the credit of defendant 1 the Subordinate Judge, Mr. Jaduhandan Prasad, passed a preliminary decree for Sale on 31 May 1918 which was followed by a final decree on 7th February 1920. The decree-holder withdrew on 2 July, 1920 the sum of Rs. 1859-14-6 which had been attached before judgment. Thereafter one of the mortgaged properties namely the house was sold on 8 December 1920 and the decree-holder was the purchaser himself at a price of Rs. 204-8-3. Subsequently he sold it on 21 November 1922 for a sum of Rs. 500 to one Hakim Abdul Hamid, Thereafter one of the defendants, Jagarnath Singh, defendant 32 against whom the decree had been made ex parte applied under Order 9, Rule 13 alleging that the summons had not been served upon him. On his application the entire decree was set aside on 17 December 1923 and the suit restored for hearing. It was heard and the whole suit was dismissed on 19 December 1924 by Mr. Abdus Shakur, Subordinate Judge.

(2.) From this dismissal an appeal was preferred to this Court and was No. 51 of 1925. The appeal was decreed and preliminary decree was passed on 17 May 1928. Pending the hearing of the appeal, however, three of the defendants had died, that is to say, on 14 February 1926, Mangroo Ray, defendant 19; on 1st February 1927, Narain Prasad, defendant 6 and in October 1927, Earn Nath Singh, defendant 26. The death of these defendants was not reported to the Court and no substitution of their heirs was made. After the passing of the High Court's decree, that is to say, on 3 July 1928, the death occurred of another defendant, namely Kalika Prasad, defendant 3. One more transaction may be mentioned and that is a transfer by the decree-holder on 14 February 1926 of her entire rights to her daughter Champamani Bibi and son-in-law, Bhan Kumar. The application for a final decree was made on 18 March 1930 before the Subordinate Judge in the names of the original plaintiff decree-holder and the two transferees. The objections which have been taken in the main, arise out of alleged defect of parties. There are however other objections affecting the amount as due to be entered in the final decree. Before the Subordinate Judge it had been contended that the applicants for a final decree were not entitled to maintain the suit. The Subordinate Judge has dealt with this contention which seems to have no foundation in anything that I can find in the Civil P. C.. The rule is that in the event of transfer or assignment of an interest by a plaintiff or decree holder, the assignee has the right to apply to the Court to be added or substituted a plaintiff. If this is not done, the suit will proceed at the instance of the original plaintiff and any decision arrived at whether favourable or unfavourable will be; effective for or against the interest of the assignee. That is on all fours with the I rules about transfer pendente lite as affecting the interest of defendant in property in suit; but as against the, plaintiffs, it is not for the defendant to raise any objection when the interest of the mortgagee in the litigation was throughout fully represented,

(3.) In April 1932 Lalmani Bibi, the mother (c) Champamani Bibi died and Champamani Bibi was substituted for her as her heir. The interest of the mortgagee was therefore completely represented throughout We were pressed much more seriously by Mr. Yusuf in respect of the second objection which refers to the death of defendants 6,19 and 26 during the pendency of the appeal in this Court. No steps were taken to substitute their heirs and it necessarily follows that the appeal against them in this Court had abated by operation of; law before the date on which the appeal was heard and decided. Therefore so far as these defendants are concerned, no-decree could be passed against them and any decree that has been passed cannot, affect their interest of the interest of their legal representatives.