ALAUDDIN Vs. BIRAN

JUDGEMENT

(1.) This is a plaintiff's second appeal from the concurrent decisions of the Courts below refusing his application for making a fresh final decree in a suit to enforce a simple mortgage bond.

(2.) The facts of this case lie within a narrow compass, and are as follows: The appellant-plaintiff instituted a suit for sale on a simple mortgage bond against one Mt. Walian. A preliminary decree for sale was passed on 10 December 1940, against Mt. Walian herself. The period of grace was to expire on 10 June 1941; but, before the expiry of that period, Mt. Walian died on 26 May 1941. The decree-holder made an application for a final decree after substituting certain persons as the heirs of Mt. Walian, and they are defendants third party in these proceedings. The final decree was made on 13 August 1941. In execution of that decree, the mortgaged property was sold and purchased by the plaintiff decree- holder. Delivery of possession was obtained by the auction-purchaser, and then certain persons, who are defendants first and second parties, claiming to be the real heirs of Mt. Walian, started proceedings under Order 21, Rule 100, Civil P.C., claiming that they were in possession of the property as the heirs of Mt. Walian, and, as they had not been substituted in her place, the final decree and the proceedings in execution and delivery of possession following thereupon were not binding upon them. After a contest between the parties, their contention was allowed to prevail, and the property was restored back to them. Thereupon, on 9th June 1948, the decree-holder made an application for vacating the final decree made as aforesaid on 18 August 1941, and for making a fresh final decree as against the defendants first and second parties who had been found by the Court to be the real heirs of Mt. Walian, the mortgagor. This application the Courts below have refused on the ground that the rights of the decree-bolder "in the preliminary decree for sale merged in the final decree prepared by the Court, and that nothing further could be done after what had happened by way of drawing up of the final decree and the execution of that decree ending in sale of the property and delivery of the same. The lower appellate Court has further observed that, after the proceedings under Rule 100 of Order 21, Civil P.C., had terminated in favour of the real heirs of Mt. Walian, defendants first and second parties, the plaintiff should have started a fresh suit under Section 103 of Order 21, Civil P.C. Hence this second appeal by the plaintiff.

(3.) It has been contended on behalf of the appellant by Mr. Sanyal that the plaintiff, who had obtained a correct preliminary decree against the mortgagor herself, should not be barred against his real rights of selling the property effectively in pursuance of that decree by a mistaken substitution proceeding taken by the decree-holder on wrong information. He has further pointed out that the application for a fresh final decree was made within three years from the expiry of the period of grace allowed by the preliminary decree, and that there is no question of abatement of the suit by the non-substitution of the real heirs of the deceased judgment-debtor, Mt. Walian. On the other hand, it has been contended on behalf of the respondents, the real heirs of Mt. Walian, that the plaintiff is now without any remedy at law, and that whatever rights he had have been exhausted by the drawing up of the final decree and the execution of that decree resulting in the sale of the property and the delivery of possession in favour of the decree-holder. The contention, in effect, is that the mistake in the substitution of the heirs of Mt. Walian made by the decree, holder, bona fide though it may be, is fatal to any fresh proceedings being taken at his instance, even though the fact remains that the property has not been effectively sold and the possession of the property has come back to them as a result of the proceedings under Order 21, Rule 100, Civil P.C. Such a contention the Court will not allow to be made successfully unless it finds itself helpless in the matter. The case came before me sitting singly, and, as no precedents were placed before me which should cover the present controversy between the parties, I referred the case to a Division Bench for final hearing. It has now come before us, and, after hearing the parties, we reserved judgment in order to consider our reasons for the decision of the case.