1. This appeal arises out of execution proceedings. It has given rise to somewhat prolonged arguments. Having regard to the points which have been raised in support of the appeal, it is desirable that I should state the facts which have given rise to this appeal. It appears that one Dagdu died, leaving a minor son Rangnath, two widows Santubai and Kashibai, his grandfather Govind, and an uncle, Yeshvant. It appears that in 1896, Santubai passed a simple mortgage on behalf of her minor step-son Rangnath in favour of Jairam, plaintiff No. 1. Apparently Rangnath's natural mother, Kashibai, was not alive then ; and we do not know exactly when Dagdu died. Anyhow when the mortgagees filed a suit on this mortgage in 1911, they joined Santubai, Govind Balaji, the paternal grandfather of Rangnath, and Yeshvant, the uncle of Rangnath, as defendants. Rangnath had died before the suit. It was stated in the plaint as follows:-
The debtor Rangnath, a minor, is dead, and defendant No. 1 has passed the mortgage-deed for her minor son and after his death she is his heir, and defendant No. 2 is the father (father's father) of the minor Rangnath and defendant No. 3 is the paternal uncle of the minor Rangnath. Defendants Nos. 2 and 3 are reversionary heirs of the deceased Rangnath.
2. In this suit Govind, the grandfather, filed his written statement in which he pleaded that really the property mortgaged belonged to him. He did not contest the recital in the plaint that Santubai was the heir of the deceased minor Rangnath, and he pleaded that he had been unnecessarily joined in the suit. It seems that a few days before the decision of the suit, the Court directed the names of Govind and Yeshvant to be struck off, and ultimately on September 18, 1911, the following decree was passed:-
Rs. 5,000 became due to the plaintiffs under a mortgage-deed Exhibit 18 on the date on which the suit is filed. It is hereby further ordered as follows:- If defendant No. 1 pays in Court on March 18, 1912, or before that day Rs. 5,000 and interest thereon at the rate of nine per cent. per annum from the date of the filing of the suit till payment and costs of this suit as mentioned below, the plaintiff do hand over all the documents they may have got in their possession or power in respect of the mortgaged property to defendant No. 1 or to that person whom she will appoint, and if it is found necessary to do so, that property free from mortagage and free from all the encumbrances created on the same, by the plaintiffs or any persona claiming under the plaintiffs or created by the persons under whom they may be putting forward their claim, should be reconveyed to the defendant No. 1. It is further ordered as follows:-If defendant No. 1 does not pay the aforesaid amount as mentioned above the entire mortgaged property, or a sufficient portion thereof should be sold and the amount of sale proceeds should be paid into Court and should be utilized towards payment of the amount directed to be paid to the plaintiffs, of the subsequent interest and of subsequent costs, and if there remains any balance it should be returned to defendant No. 1, The suit against defendants Nos. 2 and 3 is dismissed.
3. Thereafter, in December 1913, the plaintiffs filed Darkhast No. 264 of 1913 in which they prayed as follows:-
The decree should be made absolute and interest hereafter should be caused to be paid at nine per cent. per annum. If the amount bo not paid by defendant No. 1 the immoveable property mortgaged, and shown in the accompanying statement of claim should be sold and the amount be paid to plaintiffs.
4. On February 3, 1914, the Court made the following order :-'The defendant does not appear. Decree for sale made absolute.' Nothing further was done on this darkhast. Two darkhasts were filed- one in April 1915, and another within three years in April 1918. In February 1920, another darkhast was filed, but all these darkhasts really were not proceeded with and apparently nothing was done. Then, on April 19, 1921, the present darkhast was filed. Santubai had died in 1920. Before she died, Santubai and Govind had joined in executing a conveyance of the mortgaged property to one Chhaganlal Sakarlal Vani. In the present darkhast the description of the parties was given in this way :-Santubai deceased by her legal representatives original defendants Nos. 2 and 3, and Govind Balaji (defendant No. 2) having died, he was further described as represented by his legal representative Yeshvant Govind, original defendant No. 3. It may be mentioned that the transferee Chhaganlal Sakarlal Vani was brought on the record in October 1923. Thereafter the description of the parties was amended by mentioning the original defendants Nos. 2 and 3, i. e., Govind and Yeshvant, as the legal representatives of the deceased Rangnath. This was done on March 15, 1924.
5. After the transferee from Govind and Santubai was brought on the record, several contentions were raised. Some of them wore based on the allegation that Santubai being the step-mother of Rangnath was really not the heir of Rangnath according to Hindu law, but Govind, the paternal grandfather, was the nearer heir. Evidence was adduced to show that Santubai was the step-mother of Rangnath and not his natural mother. It was held that the decree, of which execution was sought, was legally made final and was capable of execution; that the application for execution was maintainable; and that Santubai was not the legal representative of Rangnath. The Court ordered execution to proceed. It was held that a separate suit was necessary for the purpose of determining whether the mortgage decree under execution was valid or not, and that it was not open to the added parties to contest the validity of the mortgage decree in execution proceedings. It was also held that the added parties were the representatives of the judgment-debtor.
6. The transferee Chhaganlal appealed to the District Court, and the learned Assistant Judge, who heard the appeal, found that it was not open to the appellant to raise the contention that Santubai was not the heir of Rangnath, and to contend that the decree obtained against her was not binding upon him. He held that the darkhast was not premature on the ground that the decree was not made final. The learned Assistant Judge also held that the darkhast was not time-barred, and, accordingly, dismissed the appeal.
7. The transferee has now appealed to this Court, and four points have been raised in support of his appeal First, it is urged that there is no executable decree because the final decree, which would be the only executable decree, has not been passed, and the decree which is sought to be executed is only a preliminary decree. Secondly, it is urged that as the heirs of Rangnath were brought on the record on March 15, 1924, i. e., more than three years after the preceding darkhast which was in February 1920, the execution was barred. Thirdly, it is urged that the decree is invalid because Santubai was never the heir of Rangnath according to Hindu law, so long as Govind, the paternal grandfather, was alive. And, lastly, it is urged that in any case nothing more is liable to be sold in execution than the right, title and interest of Rangnath.
8. As regards the first point, it is perfectly true to say that there was a preliminary decree passed, and there was the order making the decree for sale absolute; but there was no formal final decree drawn up. Technically, therefore, it is right to say that there is no final decree which could be executed. This contention has become possible because of the laxity which prevails in the lower Courts in drawing up decrees in mortgage suits. In the present case the preliminary decree was drawn up in the proper form provided by the Code of Civil Procedure. Under Rule 5 of Order XXXIV, when such payment as is directed by the preliminary decree is not made, the Court shall, on application made in that behalf by the plaintiff, pass a decree that the mortgaged property, or a sufficient part thereof, be sold. And when an order making the decree absolute is made, the final decree has to be drawn up. The question that now arises is whether, at this distance of time, nearly fifteen years after the decree, and twelve years after the order making the decree absolute was made, the execution can go on or not.
9. Having regard to the terms of the preliminary decree which has been made absolute, we could only attribute the omission to have a final decree drawn up to a misapprehension on the part of the Court, as well as the parties concerned, as to the necessity of having a final decree formally drawn up. The parties seem to have gone on all these years on the footing that the preliminary decree, which was made absolute, was the formal expression of the final decree under Rule 5 of Order XXXIV, as from the date when it was made absolute. I am of opinion that, though the final decree has not been formally drawn up on the terms of the preliminary decree, which has been made absolute, that decree coupled with the order may be taken under the circumstances to be the final decree. In its ultimate analysis, it is only a formal defect. It is conceivable that a formal defect of this nature may lead to a real difficulty in the way of execution ; and it is necessary to see that even such a formal defect does not creep in, and that a formal decree is drawn up when the decree is made final. But, under the circumstances of this case, we are not prepared to hold that there is no executable decree. The result of allowing a contention of this nature at this distance of time will be that a decree will have to be drawn up formally now and a fresh beginning will have to be made in the way of execution after the lapse of so many years. That is a result which should be avoided so far as it is legally possible to do so. On this point there is no express decision which can help the Court one way or the other. But, having regard to the observations in Jawahir Mal v. Kistur Chand I.L.R. (1891) All 343 it seems to us that an omission of this kind may be condoned whore the terms of the decree sought to be executed are otherwise ascertained or clearly ascertainable, as they are in this case. Section 99 of the Code of Civil Procedure would cover such an error or irregularity, as, under circumstances such as we have in this case, it does not affect the merits of the case or the jurisdiction of the Court.
10. The second point is that when the heirs of Rangnath were properly described on the record of the present application on March 15, 1924, the execution was time-barred. It seems to me that the-point is untenable. In the first place, when the darkhast was filed, the persons were properly described as the heirs of Santubai, who was the judgment-debtor under the decree. The subsequent amendment seems to have been made on the contention raised by the transferee after he was brought on the record. I am not at all sure that that amendment was necessary or correct. But to treat that amendment as a ground for holding that the application is time-barred is wholly unsound. There is no doubt that the application as presented in April 1921 was properly presented, and Govind, and after his death, his legal representative Yeshvant, were brought in as legal representatives of Santubai who was originally sued as the heir of the deceased mortgagor Rangnath.
11. As regards the third point, it is urged that the decree is a nullity, as it was passed, not against the true heir of Rangnath, but against one who was not his legal heir according to Hindu law. In other words, it is urged that according to Hindu law under the Vyavahara Mayukha, by which the parties are governed, the grandfather being the preferential heir over the step-mother, the decree was a nullity as it was passed against the step-mother. It appears that in both the lower Courts, the point was conceded that the grandfather was the preferential heir, and even here when the appeal was first argued it was so assumed. In view, however, of the difficulty of this question, we have heard further arguments today on the point. It does not appear to me to bo free from doubt and difficulty, as it appeared to the lower Courts, I do not desire, however, under the circumstances of the case, to examine the question whether under the Vyavahara Mayukha the step-mother is to be preferred as an heir to the grandfather or not. It may be said that, having regard to the position which she would occupy as the widow of the nearest gotraja sapinda, she would come in next after the named heirs in the compact series of heirs, and from that point of view perhaps it may be said that she is to be preferred to the grandfather. There has been no decision on this point. In support of the view that the grandfather is to be preferred, Mr. Thakor has urged arguments on the interpretation of texts which require consideration. In the view I take of the case, it is not necessary to examine this question further. I prefer to leave it undecided and rest content only by pointing out that the assumption which has been so readily made in the lower Courts may require to be considered.
12. Assuming, for the sake of argument, that Santubai was not the proper heir according to Hindu law, the fact remains that she was described as an heir at the time the suit was filed. The grandfather, who is now put forward as the preferential heir, was a party to that suit. He filed his written statement, and he did not contest in any sense the correctness of the recital in the plaint to which I have already alluded. Thus the suit proceeded on the basis that Santubai was the legal representative and the heir of Rangnath. Govind had filed a written statement and his name was ordered to be struck off the record. He did not then contest this allegation which was made by the mortgagee in the suit ; but, on the contrary, he pleaded that he was unnecessarily joined in the suit. It seems to me, therefore, that in all subsequent proceedings in the suit, it must be taken, at least so far as Govind and the person claiming under him are concerned, that Santubai was properly joined as the legal representative of Rangnath and that the decree was properly passed on that basis, that is, it must be taken to have been decided for the purposes of the suit that Santubai was the proper legal heir of Rangnath.
13. That principle has been recognised by the Privy Council in Hook v. Administrator-General of Bengal and also Ramachandra Rao v. Ramachandra Rao. (1922) L.E. 49 I.A. 129 It would lead to very anomalous results if any other view were taken of the position of Santubai with reference to this litigation. Apart from that it is hardly open to the transferee, who comes in as the representative of Govind and Santubai, as he has got his conveyance from them, to question the validity of the decree in execution. It seems to me that it would not be open to him to do so in execution proceedings, But in the view which I take of the finding as to Santubai being the heir of Rangnath for the purpose of this litigation, I hold the decree to be valid and binding upon the parties, and as the present appellant claims under her, he is equally bound by that decree.
14. The last point, namely, that it is only the right, title and interest of Rangnath that is liable to be sold, is a point which does not affect the execution of the decree. The original mortgagor was Rangnath as represented by his step-mother Santubai. When the property is put up for sale, in effect, it will be the right, title and interest of the mortgagor as now represented by the parties on the record that will be put up for sale. If any person has any interest, independent of the interest of the mortgagor, that cannot be affected by the execution of this decree. But the transferee cannot object to the execution of the decree on the ground that he is claiming under Govind some interest which is independent of Rangnath's interest in this property. If he has any such interest at all it is an interest which has to be established in a separate suit. But the existence of any such interest would be no ground for not allowing execution of the decree to proceed.
15. We, therefore, dismiss this appeal with costs.
16. I would only add with reference to the first point that the executing Court has not unnaturally been misled in committing the informality under consideration by the practice that existed when the procedure followed in such cases was that prescribed by the Transfer of Property Act. Under that Act there Was only a decree, which was followed by an order absolute. Unfortunately that old practice is often followed in spite of the changes made by the legislature by the provisions of Order XXXIV of the present Civil Procedure Code. On the other hand, as was pointed out in Harjivan v. Gajanan : AIR1923Bom420 , the legislature unfortunately did not then make the position as clear as it should have, and the prescribed forms for preliminary mortgage decrees embody much that should more properly have been put in the form of final decree. In these circumstances, there is obviously room for paying more regard to the equities and substantial principles of justice rather than to the informalities that have occurred, The forms of preliminary mortgage decrees have been altered by this Court under the Government Notification No. 1646 published at pp. 575 et seq, of the Bombay Government Gazette for 1926, Part I; and it is to be hoped that such informalities will not occur in future. No doubt, it is a possible contention, which has in fact been urged, that there was no proper application by the decree-holders for a final decree. But in the first darkhast of 1914 they did include a prayer that the decree should be made absolute, and it would be an obvious technicality to say that the Court ought not to have made any order except on a separate application in the suit. Though it was called a darkhast, it was really an application to make the decree final, and, therefore, should be held to be a proper application.
17. I agree, therefore, that the appeal should be dismissed with costs.
18. I desire to express my agreement with the observations of my learned brother as to the necessity of following properly the rules of the Code and the forms of preliminary and final decrees as now amended.