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Moreshwar Bapuji Phatak Vs. Kushaba Shankroji and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom248
AppellantMoreshwar Bapuji Phatak
RespondentKushaba Shankroji and anr.
Excerpt:
code of civil procedure (act viii of 1859), section 73--act xxiii of 1861, section 11--conveyance subsequent to a decree in appeal--death of the party executing the conveyance--admissibility of the purchaser to carry on a special appeal. - - the property sued for, if it did not become res litigiosa in the full sense of the roman law so soon as the parties were at issue, was yet, we think, so bound when a decree had awarded it to the plaintiff, that it could not effectively be assigned to a third party so as to give a new term of life to the litigation, which, in the absence of the assignment, would have died with pitambar. smart l......remained to him was a right to challenge that decision by a special appeal. in purchasing this right, moreshwar, we think, purchased it, subject to the chance of the plaintiff's title becoming unimpeachable on account of pitambardhari's failing through death to make or carry on the possible appeal, not a right after pitambardhari's death to continue the litigation on his own account. the property sued for, if it did not become res litigiosa in the full sense of the roman law so soon as the parties were at issue, was yet, we think, so bound when a decree had awarded it to the plaintiff, that it could not effectively be assigned to a third party so as to give a new term of life to the litigation, which, in the absence of the assignment, would have died with pitambar. by his purchase,.....
Judgment:

West, J.

1. The question in this case is whether Moreshwar, a purchaser, subsequent to the decree against Pitambardhari in regular appeal, can now, when Pitambardhari has died, maintain a special appeal filed by Pitambardhari for the reversal of the decree. It is contended by Mr. Shantaram that the purchaser under such circumstances is a representative of the deceased, entitled in that character to carry on the litigation through the several stages allowed by the Code of Civil Procedure, and he relies on the oases disposed of under Section 11 of Act XXIII of 1861 as furnishing an analogy by which the Court should be guided in disposing of Moreshwar's application in the present instance. Those cases, however, proceed always on the assumption that the points brought under adjudication in the judgment sought to be executed, have been finally disposed of. It is only questions arising in execution, and not thus previously disposed of, that have been allowed to be contested under Section 11 of Act XXIII of 1861. An objection, however valid, which might have been taken to a decree in regular appeal by means of a special appeal, is not allowed to be raised in the execution of a decree so as, by the introduction of new interests, to deprive the decree of any part of its intended operation between the parties.

2. The admission of a purchaser of a property in litigation as an additional defendant under Section 73 of the Code of Civil Procedure, which has been allowed in several cases, would, no doubt, according to the usual practice, entitle him to maintain an appeal; but this admission itself, after the nature of the litigation and the questions to be disposed of have been settled by the statements of the original parties, must, we think, be looked on as a privilege or indulgence upon which an argument is not to be founded for an extension of the rule as embodying a general principle to other apparently analogous cases. The suit as brought in the present case did not touch any interest of Moreshwar's, and such an extension as is here proposed has not hitherto been made of the right of appeal on account of newly-constituted interests; or, if it has, no instance of it has been cited to us.

3. We are of opinion that the language employed by Sir T. Plumer, M.R., in Metcalfe v. Pulvertoft 2 V. & B. 200 see 205 and cited by the Chief Justice of this Court in Balaji Ganesh v. Khushalji 11 Bom. H.C. Rep. 24 though capable of being explained away in a somewhat different sense, may yet be applied, and properly applied, to the particular case now before us. He speaks of the conveyance pendente lite 'having no effect, with reference to any beneficial result against the plaintiff in that suit;' and it is clear that the purchaser in this case would, as against the plaintiff, derive a 'beneficial result' from his purchase if allowed to retain the house awarded to the plaintiff, and to prosecute a special appeal, or force the plaintiff to a compromise in order to save the expense of litigation. At the time of Moreshwar's purchase, Pitambardhari's alleged right as owner had been pronounced against by a Court of competent jurisdiction. What remained to him was a right to challenge that decision by a special appeal. In purchasing this right, Moreshwar, we think, purchased it, subject to the chance of the plaintiff's title becoming unimpeachable on account of Pitambardhari's failing through death to make or carry on the possible appeal, not a right after Pitambardhari's death to continue the litigation on his own account. The property sued for, if it did not become res litigiosa in the full sense of the Roman Law so soon as the parties were at issue, was yet, we think, so bound when a decree had awarded it to the plaintiff, that it could not effectively be assigned to a third party so as to give a new term of life to the litigation, which, in the absence of the assignment, would have died with Pitambar. By his purchase, Moreshwar could acquire an equitable right operating against Pitambardhari's conscience when the means of satisfying it should come into Pitambardhari's power, but none against the plaintiff, a stranger to the bargain and Pitambardhari's antagonist. The conclusion we have arrived at is, we think, to some extent at least, supported by the observations of Hall, V.C., in the case of Hooper v. Smart L.R. I Ch. D. 98 although that case was itself, no doubt, quite different from one now before us.

4. We, therefore, reject the application with costs.


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