RAM HARAKH SINGH Vs. SMUMTAZ HUSAIN

JUDGEMENT

(1.) This revision under Section 115, Civil P.C., raises a point of soma interest. The point arises in this way. Surat Singh and Gajraj Singh made a mortgage of certain property in favour of Mumtaz Husain for Rs. 1,500. Surat Singh died leaving his son Ram Harakh. The interest of Gajraj Singh as co-mortgagor upon his death devolved upon Arjun Singh. Ram Harakh instituted proceedings for redemption of the property under Section 12, U.P. Agriculturists Relief Act, impleading, besides Mumtaz Husain mortgagee, his co-mortgagor Arjun Singh as a defendant. His case was that he was entitled to redemption without payment of any amount as the entire mortgage money had been paid out of the usufruct of the property. The mortgagee's defence was that the profits were inadequate and a considerable amount was still due under the mortgage. Curiously enough Arjun Singh in his defence supported to some extent the case of the mortgagee. In para. 15 of his written statement he stated that the profits of the property mortgaged after deduction of the costs of realisation are very small and the value of the mortgaged property is less than the mortgage money. He admitted that he was the owner of half the mortgaged property. The principal issue in the case was : "What net profit the mortgagee could have made with due diligence from the mortgaged property?"

(2.) After filing the written statement Arjun Singh does not appear to have taken any part in the proceedings and on 8 April 1946, Ram Harakh and Mumtaz Husain both agreed to refer the case to the decision of Mr. Narain Lal, Advocate as arbitrator. The Court accordingly appointed him as arbitrator. The arbitrator gave an award on 30 May 1946. The mortgagee objected to the award. It appears that Arjun Singh subsequently appeared and stated that he had no objection either to the appointment of the arbitrator or to the award made by him. This statement was made on 31 July 1946. The learned Munsif dismissed the objection of the mortgagee and passed a decree in accordance with the award.

(3.) On appeal by the mortgagee the learned Civil Judge set aside the decree and remanded the case for trial from the stage at which the reference was made and to decide the case according to law. The view taken by the appellate Court is that Arjun Singh as a necessary party was interested in the reference, although the proceedings against him were ex parte and as he did not join the reference, the reference was invalid and the award based thereon inoperative. The fact that Arjun Singh subsequently ratified the proceedings did not cure the defect which was fatal to the reference.