1. This revisional application challenges the validity of the order passed by the learned Judge allowing the Opponent to withdraw his appeal with liberty to file a fresh suit and it is urged by Mr. Sukhtankar that in granting leave Under Order 23, Rule 1(2) (b), of the Code the learned Appellate Judge has clearly assumed jurisdiction not vested in him because the defect alleged by the Opponent and accepted by the learned Judge cannot be said to amount to a formal defect within the meaning of the said rule. This contention appears to me to be well-founded and must be accepted.
The material facts are very few. The property in suit originally belonged to one Nimbalkar. Nimbalkar created three mortgages over this property and other properties in 1918, 1921 and 1926. The mortgagee in all the three cases was one Jambappa Awate. The mortgagee brought a suit on these three mortgages to recover the mortgage amount in 1931. This suit was decreed in 1851, the mortgaged property was put to sale and purchased by the petitioner.
Meanwhile Nimbalkar sold this property to Ghorpade on 14-8-1933. This was pending the mortgage suit. It would appear that the Opponent obtained a decree for the payment of money against Ghorpade and in execution of this money decree be purchased the property at a Court sale in 1943. After the petitioner became the auction-purchaser of the mortgaged properties, he sought to recover possession of the properties. Amongst them was included the property in the present suit.
It was at this stage that the Opponent filed the present suit and claimed an injunction against the petitioner restraining him from attempting to recover possession of the said property from himself. The Opponent's case appears to be that the present property was wrongly included in the mortgage suit, that it was really not the subject matter of the mortgage and so the auction-sale conferred no title on the auction-purchaser in respect of this property. This claim was rejected by the learned trial Judge.
The plaintiff preferred an appeal and before the appellate Judge he applied for permission to withdraw the appeal with liberty to file a fresh suit and the learned Judge has granted this application. In his order the learned Judge has observed that, though the application made by the Opponent may. not fall under Order 23, Rule 1 (2) (a) of the Code, it did fall under Order 23, Rule 1 (2) (b). In taking this view, the learned Judge was clearly in error.
It has been held by this Court that the two clauses have to be read by applying the rule of ejusdem generis and a cause which is sufficient within the meaning of Order 23, Rule 1(2) (b) must be similar or alike to the cause mentioned in Order 23, Rule 1(2) (a). That is a point which is legitimately made by Mr. Sukhtankar against the judgment of the learned Judge. Besides however liberally one were to construe the provisions of Order 23, Rule 1(2)(b), it is difficult to understand how the defect pleaded by the Opponent can be regarded as anything like a formal defect.
The Opponent told the learned appellate Judge that he had failed to attack the mortgage decree and since the mortgage decree had not been attacked the parties to the mortgage decree had not been impleaded to the suit and the non-joinder of these parties and the failure to make an appropriate claim in respect of the validity or otherwise of the said mortgage decree constituted a formal defect in the suit.
All this is not stated in the application or in the order of the learned Judge, but that I gather to be the effect of the order. What the learned Judge has stated is that the Opponent would have to attack the mortgage decree itself by impleading the original mortgagors and mortgagee and getting a declaration that the mortgage decree is not binding on the suit properties. How it is well settled so far as this Court is concerned that nonjoinder of parties does not constitute a formal defect within the meaning of Order 23, Rule 1 (vide Asian Assurance Co. Ltd. v. Madholal : AIR1950Bom378 .
The Opponent plaintiff appears to be a purchaser affected by lis pendens and in the plaint he has specifically referred to the fact that the present petitioner claimed to be an auction-purchaser of this property and was about to take possession of this property. Indeed, it is because the petitioner as auction purchaser sought to re-coyer possession of this property that the present suit for injunction was filed and it appears that though the suit was filed with full knowledge that the auction-purchaser was seeking to enforce his rights as such, no allegation appears to have been made in the plaint that the mortgage decree was not binding and no relief appears to have been claimed in that behalf.
Failure to make this claim and failure to implead parties in respect of the claim cannot, in my opinion, be properly regarded as a formal defect which is fatal to the suit.
2. I must, therefore, set aside the order passed by the lower appellate Court and send the appeal to that Court with a direction that ho should deal with it in accordance with law. It would be open to the plaintiff to apply to the lower appellate Court for leave to amend the plaint if he is so advised, and if the appellate Court feels that in the interests of justice an amendment should be allowed on terms which the appellate Court may deem fit to impose, it would no doubt be open to the appellate Court to adopt that course.
But because an amendment is likely to be applied for, there is no reason why the whole appeal should be allowed to be withdrawn, particularly when it is by no means clear that the defect which is sought to be remedied by the proposed amendment is in the nature of a formal defect.
3. The result is, the revisional application must be allowed, the leave granted by the lower appellate Court must be set aside and the appeal sent back to his Court for disposal in accordance with law. The petitioner would be entitled to his costs of this revisional application from the opponent.
4. Order accordingly.