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Muhammad Masihullah Khan and anr. Vs. Jarao Bai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Judge
Reported inAIR1915All88; (1915)ILR37All226
AppellantMuhammad Masihullah Khan and anr.
RespondentJarao Bai and ors.
Excerpt:
civil procedure code (1908), order xxii, rule 10 - redemption of mortgage--preliminary decree--sale of mortgaged property--right of purchaser to be made a party to the suit. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9..........the definition of decree contained in the present code of civil procedure it is explained that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. this makes it quite clear that a suit of this kind does not come to an end after the passing of a preliminary decree. in this view it is unnecessary to consider, whether order xxii, rule 10, applies to execution proceedings. it was held by this court that section 372 of the old code of civil procedure did not apply to execution proceedings. it is unnecessary to decide whether order xxii, rule 10, which has taken the place of that section, does or does not apply to execution proceedings. it is sufficient for the present case to say that the suit was still pending when the.....
Judgment:

Chamier and Piggott, J.

1. Musammat Maminna Khatun, on the 22nd of December, 1908, obtained a preliminary decree for redemption. On appeal to this Court the decision was upheld by a decree dated the 19th of May, 1910, which allowed the plaintiff six months from that date to redeem the property. On the 12th of October, 1912, Musammat Maminna Khatun sold the mortgaged property to the present appellants, leaving in their hands a sum of money sufficient to enable them to redeem the property in accordance with the decree. On the 6th of April, 1914, the appellants applied to the court below to be made plaintiffs in the suit in the place of Maminna Khatun, and on the same day they applied to the court to extend the time for redemption and to allow them to pay the mortgage money into court. Both applications were dismissed. This is an appeal against the order dismissing the appellant's application to be made plaintiffs in the suit. The Subordinate Judge seems to have dismissed the application on two grounds, namely, (1) that no execution proceedings were pending at the time when the application was made, therefore Order XXII, Rule 10, did not apply to the case, and (2) that the decree had not been transferred to the appellants, therefore Order XXI, Rule 16, did not apply. In appeal it is contended that the suit is still pending, and reliance is placed on a decision of the Calcutta High Court in Bhugwan Das Khettry v. Nilkantha Ganguli (1904) 9 C.W.N. 171 to the effect that a suit of this kind may be 'pending' even after the decree absolute. A question has been raised as to whether these proceedings are governed by the new Code of Civil Procedure. It seems to us that the proceedings must be held to be governed by the new Code. It is true that the preliminary decree was passed by the Subordinate Judge in December, 1908, just before the new Code came into force, but the case, as already stated, was brought up to this Court and a decree was passed by this Court in May, 1910, after the passing of the new Code. Before the passing of the new Code there was considerable conflict of judicial opinion on the question whether proceedings after a preliminary decree for sale or redemption should be regarded as proceedings in a suit or as proceedings in execution of a decree. Under the present Code there can be no doubt that such proceedings must be held to be proceedings in a suit. We have no difficulty in holding that the suit with which we are now concerned was still pending within the meaning of Order XXII, Rule 10, when the appellants' application to be made plaintiffs was filed. In the definition of decree contained in the present Code of Civil Procedure it is explained that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. This makes it quite clear that a suit of this kind does not come to an end after the passing of a preliminary decree. In this view it is unnecessary to consider, whether Order XXII, Rule 10, applies to execution proceedings. It was held by this Court that Section 372 of the old Code of Civil Procedure did not apply to execution proceedings. It is unnecessary to decide whether Order XXII, Rule 10, which has taken the place of that section, does or does not apply to execution proceedings. It is sufficient for the present case to say that the suit was still pending when the appellants' application to be made plaintiffs was made.

2. The only other question is whether there has been a devolution of interest which entitles the present appellants to be made plaintiffs in the suit. The sale-deed executed by Musammat Maminna Khatun transfers the whole of the mortgaged property to the appellants and recites that a part of the price has been left in their hands in order that they may proceed to redeem the property. The sale-deed in fact comes very near being a transfer of the preliminary decree. It is quite clear from the terms of the deed that the parties considered that the purchasers of the property would be entitled to redeem the property in the suit in which the preliminary decree had been passed. Without holding that there had been a definite transfer of the decree, we have no doubt whatever that there has been a devolution of interest which entitles the appellants to be made plaintiffs in the suit. In our opinion the appellants' application should have been allowed. We, therefore, allow this appeal, set aside the order of the court below and direct that the names of the appellants be entered as plaintiffs in the place of Musammat Maminna Khatun. The respondents must pay the appellants' costs.


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