1. This is a revisional application in which Mr. Bhasme for the petitioner has attempted to challenge the finding recorded by the learned District Judge that the petitioner is not entitled to the benefit of the proviso to Section 10A of the Dekkhan Act on the allegation that the transaction of 29-1-1923 was a mortgage. It appears that the first transferee was defendant No. 1. Thereafter the property has been conveyed to defendants Nos. 2, 3 and 4 successively.
Defendant No. 1 admitted that the transaction was a mortgage. Defendants Nos. 2 and 3 remained ex parte and defendant No. 4 who contested the suit did not enter the box. The trial Court found that the transaction was a mortgage. It however, came to the conclusion that defendant No. 4 was entitled to the benefit of the proviso to Section 10A. On appeal, the finding that the transaction was a mortgage has been confirmed, but the view that the proviso helped defendant No. 4 has been reversed; and Mr. Bhasme challenges the correctness of this view.
2. Mr. Bhasme argues that the learned District Judge was deciding this matter under Section 53 of the Dekkhan Act and his jurisdiction was limited in that sense. Mr. Bhasme no doubt concedes that the revisional jurisdiction under Section 53 is wider than the revisional jurisdiction under Section 115.
Under Section 53, the revisional Court is entitled, to consider the propriety of the finding recorded by the trial Judge, though interference with the order of the learned trial Judge would be justified only where it is in the interests of justice. But whether or not an order is in the interests of justice must be decided by the Court exercising jurisdiction under Section 53. Therefore, I do not see how it would be open to Mr. Bhasme to challenge the finding made by the learned District Judge that the proviso to Section 10A cannot apply to defendant No. 4.
3. Apart from this aspect of the matter, it seems to me impossible to accede to the argument that on the facts in the present case any other conclusion can be reasonably reached. Defendant No. 1 admitted the mortgage nature of the transaction and defendant No. 4, who contests the present suit did not even care to step into the witness box. Mr. Bhasme argues that defendant No. 1 colluded with the plaintiff.
It may or may not be true; but there was nothing to prevent defendant No. 4 from stepping into the witness box and deposing to facts which were within his knowledge. Defendant No. 2 is a nephew of defendant No. 1 and he remained ex parte. Mr. Bhasme contends that the first three defendants are no longer interested in the property and so they let him down. Perhaps there is some force in this argument.
Even so, the question which fell to be considered was a pure question of fact, and on appreciating the facts and circumstances the revisional Court, exercising its jurisdiction under Section 53, came to the conclusion that the finding of the trial Judge was improper and that the interests of justice required that the conclusion of the learned trial Judge should be interfered with. I do not see how I can legitimately interfere with the decision of the revisional Court.
4. Mr. Bhasme then contended that the revisional application before the District Judge had abated because defendant No. 1 had died pending the hearing of the suit in the trial Court and his heirs were not brought on the record. This argument assumes that defendant No. 1 was a necessary party to the suit. I am not satisfied that the assumption is well-founded.
Defendant No. 1 having sold his right, title and interest to defendant No. 2, he ceased to be interested in the mortgage security and as such he was not a necessary party within the meaning of Order 34, 'Rule 1 of the Civil Procedure Code. He may have been a proper party perhaps but unless it is shown that he was a necessary party the argument that the revisional application abated in consequence of his death and in consequence of the failure of the plaintiff to implead his heirs cannot succeed.
5. In the result, the revisional application fails and the rule is discharged with costs.
6. The civil application also fails andmust be dismissed.
7. Revision dismissed.