ALAGAR RAJA Vs. NARAYANA RAJA

JUDGEMENT

(1.) The question for decision in this petition arises in connection with a second appeal the parties to which have reported compromise in the matter. The petitioners whose petition I shall describe presently have applied to be brought on the record and to defend the second appeal in lieu of the respondent in the appeal. They claim to be entitled to do this under Order 22, Rule 10, Civil Procedure Code, namely, on the ground that they have acquired an interest in the subject-matter of the suit which is in danger of being injured by the proposed compromise of their transferor, the respondent. The facts of the case are as follows: - The plaintiff in this suit had three successive mortgages on the same items of property, namely, S. No. 80 measuring 93 cents, S. No. 79 measuring 17 cents, and another piece of land and a house. These two latter items are not particularly specified in the pleadings and their identity is not of any importance. The plaintiff in the suit, as I have said, was the mortgagee of this property by mortgages dated 13th September, 1923, 3 August, 1927, and lastly a mortgage of a later date which is not now apparent from the papers in the case. The first of the plaintiffs mortgage was for Rs. 1,500, the second was for Rs. 800, and third was for Rs. 210 and we have the plaintiffs statement in his plaint to the effect that on the date of the suit, that is to say, in 1931 these three mortgages amounted to Rs. 4,000. The defendant was a man entitled in respect of a mortgage which was prior to all the foregoing mortgages. The mortgage extended over S. Nos. 80 and 79 and it comprised two other S. Nos. which are not the subject of the three succeeding mortgages. The original mortgagee had obtained a decree on his mortgage and assigned it to the defendant. The amount of that decree was Rs. 375 if paid before the 13 August, 1929, and Rs. 620 if paid otherwise. It will be observed that even assuming that nothing has been paid on this mortgage, the amount due on it is only Rs. 620 as on the 13 August, 1929 and I would also observe that the two S. Nos. which were included in the subsequent mortgages are exactly half the extent of land mortgaged in the first mortgage. S. No s. 80 and 79 are in the aggregate 1 acre 10 cents. The other two S. Nos. comprised in the first mortgage are of the same extent.

(2.) Coming to the plaintiffs suit the object of it was to obtain a declaration that the assignment of the decree on the first mortgage to the defendant was purely nominal and fraudulent since as a matter of fact the said decree had been discharged. The learned District Munsiff of Srivilliputtur held against the plaintiff on this point but he also held that the plaintiff was entitled in equity to ask that his properties, viz., S. Nos. 80 and 79 should be sold last. The Court evidently meant that the properties which were comprised in the three subsequent mortgages in favour of the plaintiff should in any execution proceedings taken by the defendant be put up for sale only after S. Nos. 48 and 49. It should be remembered that S. Nos. 48 and 49 are not included in any of the subsequent mortgages. This decision was appealed against by the defendant, representative of the 1 mortgagee. He objected to the decision of the trial Court in respect of the order by which the plaintiff was given the benefit of marshalling and his appeal was dismissed. He is the appellant in this second appeal and the respondent is the plaintiff in the suit. The validity of the 1 mortgage is now no longer in question. The only question for consideration in the second appeal was whether the order of the Courts below in the matter of marshalling was correct and that question has been settled between the parties, by their arriving at a compromise. The compromise is evidenced by a memorandum signed by the parties and by their learned advocates and it is to the effect that the plaintiff in consideration of a cash payment of Rs. 410 agrees that the defendant shall execute his decree by selling the property in any order he likes.

(3.) Now coming to the position of these petitioners, they during the pendency of the suit in the trial Court took an assignment from the plaintiff of the first two of the plaintiffs mortgages, that is to say, the mortgages of 1923 and 1927 the face value of which is Rs. 2,300. They apply to be allowed to continue the second appeal since of course the order for marshalling which the plaintiff has obtained is very much in favour of these petitioners. The only question I have to decide is whether these parties who now claim to continue the second appeal can be allowed to do so. The case, as I have said, appears to be governed by Order 22, Rule 10, Civil Procedure Code, which is as follows: In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.