1. This is an appeal from the judgment and decree passed by the learned District Judge of Benares in a suit brought by the plaintiff-appellant for enforcement of a mortgage deed dated 8th January 1921, executed by one Kalkanand Swami who was the Mahant of a shrine situate in Benares. A preliminary decree was passed against the aforesaid Kalkanand Swami on 24th February 1924. He died shortly afterwards. The period of grace fixed in the preliminary decree was three months. By an application dated 13th May 1924, the plaintiff-appellant prayed that Mahant Satyanand, the present respondent, be brought on the record as the legal representative of the deceased Kalkanand Swami. The former objected to the proceeding, taken by the plaintiff-appellant, on the ground that the property which had been mortgaged by Mahant Kalkanand Swami and to which the preliminary decree related was endowed property appertaining to the mutt of which Kalkanand Swami was the presiding Mahant and of which the respondent is now the Mahant in succession to Kalkanand Swami. It was pleaded that the mortgage not being for any legal necessity was not binding on the mutt and on the respondent. Mahant Satyanand Swami also denied being the legal representative of Kalkanand Swami. The learned Subordinate Judge, before whom the case came up in the first instance, held that the property mortgaged by Kalkanand Swami was endowed property appertaining to the mutt of which he was the Mahant and that there was no legal necessity for the loan evidenced by the mortgage deed in suit. The application for final decree under Order 34, Rule 5, Civil P.C., was disallowed. An appeal to the learned District Judge was unsuccessful. The present second appeal has been filed by the plaintiff impugning the view taken by the Courts below.
2. The learned advocate for the plaintiff-appellant has contended before us that the provisions of Order 34, Rule 5, Civil P.C., are imperative and that if within the time limited by the preliminary decree the mortgage money has not been paid the Court has no option but to refuse to pass a final decree. We are unable to accede to this argument. The provisions referred to should be read with other provisions of the Civil Procedure Code. It is clear that a final decree cannot be passed unless some legal representative of the deceased defendant against whom a preliminary decree was passed is brought on the record. If the attempt to treat Satyanand Swami as the legal representative of the deceased fails, it is obvious that no final decree can be passed, Satyanand Swami can be treated as the legal representative of Kalkanand Swami if the mortgaged property is part of the endowed property which was in the management of Kalkanand Swami, who has been succeeded in that management by Satyanand Swami. Under Order 22, Rule 4(2), Civil P. C, a person against whom an application is made for substitution can, if brought on the record, make any defence appropriate to his character as the legal representative of the deceased defendant. If therefore Satyanand Swami be treated as the legal representative of the deceased it is open to him to contest the plaintiff's claim to obtain a final decree on the ground that the mortgage deed executed by Kalkanand Swami was invalid and that a final decree should now be refused. If Satyanand Swami be not treated as the legal representative of the deceased the application made by the plaintiff-appellant for the representative of Kalkanand Swami being brought on the record should stand dismissed, in which case the Court cannot proceed to pass a final decree under Order 34, Rule 5, Civil P.C.
3. We have not been able to discover any definite order of the trial Court directing the name of the respondent being substituted as the legal representative of the deceased Mahant but the trend of the judgment of the learned Subordinate Judge shows that he was inclined to the view that Satyanand Swami having inter-meddled with the estate of Kalkanand Swami is his legal representative. He, however, held that the property mortgaged by Kalkanand Swami is part of the property appertaining to the mutt and the mortgage not being warranted by any legal necessity was void. These were the grounds urged by Satyanand Swami in his character as the legal representative of the deceased. Having arrived at that finding he refused to pass the final decree. The learned District Judge has not specifically referred in his judgment to the question as to whether the plaintiff-appellant's application for substitution of Satyanand Swami in place of Kalkanand as the latter's legal representative should be allowed. He has agreed with the view taken by the learned Subordinate Judge as regards the character of the property and the validity of the mortgage. Accordingly he upheld the order refusing to pass the final decree.
4. We are of opinion that the view taken by the Courts below is correct. While under ordinary circumstances the provisions of Order 34, Rule 5, Civil P. C, being imperative in their character should be followed, but taking them with the provisions of Order 22, Rule 4(2), Civil P.C., it is clear to us that the legal representative is at liberty to take any defence which may be appropriate to his character as the legal representative of the deceased defendant. Satyanand Swami having been found to be the Mahant of the mutt to which the mortgaged property appertains is bound to protect the interest of the mutt and is entitled to oppose further proceedings being taken for the enforcement of the invalid mortgage deed executed by his predecessor-in-office. It is obvious that if he does not put forward an appropriate defence for the protection of the interests of the mutt of which he is the present Mahant and allows a final decree to be passed, complications of a serious character will be introduced. It may be too late for him to prevent the sale which must in the ordinary course follow the final decree. The learned advocate for the plaintiff-respondent has suggested a course which does not appeal to us. He contends that Mahant Satyanand Swami should submit to a final decree being passed and the sale held thereunder and should vindicate the right of the mutt by instituting a regular suit. We are of opinion that this circuitous course is not only undesirable but legally objectionable. The policy of the law is always to avoid multiplicity of proceedings, and to take a course of this kind will be to multiply litigation, if nothing worse. Proceedings following an application for preparation of a final decree are proceedings in the suit. It is therefore not too late for the respondent to show that the mortgage sought to be enforced is not valid and binding on him against whom the final decree is applied for. For these reasons we are clearly of opinion that the orders passed by the Courts below are correct. This appeal fails and is dismissed with costs.