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Puttoo Lal and ors. Vs. Munshi Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1932All466; 140Ind.Cas.529
AppellantPuttoo Lal and ors.
RespondentMunshi Lal and ors.
Excerpt:
- - the order in question is therefore not open to appeal and the appeal must fail on this ground......out, the liability of the defendants for the balance of the decree still subsists. whoever allege themselves to be the legal representatives of behari lal are competent to make an application for substitution of names. we allow the appeal and set aside the order of the court below. it will be for the court below to determine the question as to whether or not behari lal was joint with puttoo lal and others. if he was joint, the widow has no right to be substituted in place of behari lal. if, on the other hand, he was separate, in that case puttoo lal and others had no right to be substituted in place of behari lal, and the only person who could be brought on the record in place of the deceased was the widow. this matter will have to be determined by the subordinate judge upon the.....
Judgment:

Mears, C.J.

1. Munshi Lal and others had executed a mortgage bond in favour of Behari Lal, Puttoo Lal and four others on 20th January 1914. The bond provided that the debt was to be paid after seven years. On 25th May 1925, the mortgagees brought a suit for recovery of Rs. 9,359-8 0 in enforcement of their mortgage and obtained a decree on 21st July 1925. The mortgaged property was sold for Rs. 8,000 on 21st August 1929. This left a balance of Rs. 3,066-8-0 still due from the mortgagors.

2. Behari Lal died on 4th April 1930. On 2nd July 1930, two applications were presented in the Court of the Subordinate Judge of Parrukhabad : one by Puttoo Lal and four others, who were co-plaintiffs with Behari Lal, and the other by the widow of Behari Lal. The applicants prayed for substitution of names in place of the deceased Behari Lal. These applications were dismissed by the Court below ; hence this appeal. We are of opinion that where a Court rightly or wrongly comes to the conclusion that certain persons cannot in terms of Order 22, Rule 3, Civil P.C., be substituted in place of a deceased plaintiff, such an order is not a decree, nor is it an order from which an appeal has been provided for in the Code of Civil Procedure. The order is not a decree because it does not adjudicate the rights of the parties on any point or points in controversy in the suit. It is therefore an 'order,' but is not an order from which an appeal has been provided in Section 104, Civil P.C. or in Order 43, Civil P.C. The order in question is therefore not open to appeal and the appeal must fail on this ground. Mr. Shiva Prasad Sinha, on behalf of Puttoo Lal and others, has prayed that his appeal should be treated as an application for revision, under Section 115, Civil P.C. Mr. Shiva Prasad Sinha has argued that his application for substitution of names is a preliminary step to an application for a decree under Order 34, Rule. 6, Civil P.C. which he intends to make. An application under Order 34, Rule. 6 is a proceeding in the suit. This has been held in numerous cases and' the decision in Babu Lal v. Raghunandan : AIR1930All841 is a case in point. In view of the fact that the mortgage suit was instituted within six years of the time when the money became payable and the projected application for a decree under Order 34, Rule 6, Civil P.C. will be within three years of the date when the mortgaged property was sold, we are of opinion that the right of Puttoo Lal and others for a decree over is not time barred and the liability of the judgment-debtor still subsists. In view of these facts, we consider it proper to treat the appeal as an application for revision. We hold that the Court below has erred in dismissing the application for substitution on the ground that the mortgaged property having been sold the decree has practically come to an end. As we have pointed out, the liability of the defendants for the balance of the decree still subsists. Whoever allege themselves to be the legal representatives of Behari Lal are competent to make an application for substitution of names. We allow the appeal and set aside the order of the Court below. It will be for the Court below to determine the question as to whether or not Behari Lal was joint with Puttoo Lal and others. If he was joint, the widow has no right to be substituted in place of Behari Lal. If, on the other hand, he was separate, in that case Puttoo Lal and others had no right to be substituted in place of Behari Lal, and the only person who could be brought on the record in place of the deceased was the widow. This matter will have to be determined by the Subordinate Judge upon the evidence which the parties may adduce. The result is that we dismiss the appeal, but treating the petition of appeal as an application for revision, we allow the application subject to the remarks contained above and send back the case to the learned Subordinate Judge for disposal according to law. We make no order as to costs.


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