1. This is an application in revision against an order passed by the District Judge of Kanpur. The facts of this case are somewhat complicated, but they have been stated with great clarity by Mr. Shambhu Nath Seth, the learned Counsel for the opposite party. They are briefly these. Two brothers, Mohammad Nazir and Mohammad Yasin, on 25-11-1932, purchased a plot of land from the Improvement Trust of Kanpur. They were not in a position to pay the entire purchase money. They paid a portion and undertook to pay the balance in twelve half-yearly instalments. It wag also provided that the plot o land with the constructions which might be raised on it, were to stand hypothecated by way of security. On 27-3-1933, Nazir sold his interest to Yasin with the result that the latter became the sole owner of the entire plot. Yasiu, thereafter, started certain construction on it and raised the funds by borrowing from one Lakshmi Narain. They made a mortgage in his favour of the plot together with the constructions. Part of the consideration was paid to Yasin, but the bulk of it was left in the hands of Lakshmi Narain for the discharge of the debts due from the Trust. On 5-1-1935 Yasin sold the equity of redemption of the western half of the house, to his wife Mt. Sirajan, in lieu of her dower debt. The result of this transaction was that her purchase was subject to the mortgage of Lakshmi Narain. On 21-7-1935 Yasin purported to sell the entire house to Lakshmi Narain, although a part of it he had already conveyed to his wife in lieu of her dower debt. Yasin died, Mt. Sirajan and Nazir as the brother of Yasin, remained in possession of the house.
2. On 21-7-1939, Lakshmi Narain brought a suit for arrears of rent and also for possession of the entire plot. In the alternative, there was a prayer that if the whole plot could not be made available to him, a decree for possssion might be passed in respect of the eastern section and a mortgage decree in respect of the western half which had been sold to Mt. Sirajan.
3. The learned Munsif decreed the suit for possession and arrears of rent with respect to the eastern half and passed a mortgage decree with respect to the western half. It might be noted that, in this suit, the other heirs of Yasin were also made defendants. Two of them were, Hasain Bano and her daughter, Mt. Saghirunnisse. An appeal was preferred against this decree by Hasan Bano and Saghirunnigsa and an application to appeal in forma pauperis under Order 44, Rule 1, Civil P.C., was also presented along with the memorandum of appeal. Mr. Baylis, the learned District Judge, directed the learned Munjif to make an enquiry on the question of pauperism. The learned 'Munsif submitted his report in favour of the two ladies. Mr. Baylis, thereupon allowed the appellants to appeal in forma pauperis. On behalf of Radha Kishan, who is the son of Lakshmi Narain - evidently' he is now dead - an application was made to recall the previous order, as it had been passed without notice to him. Mr. Crofts went carefully into the matter and came to the conclusion that the order of Mr. Baylis, had been passed ex parte. He, therefore, recalled it. The present application in revision is directed against this order of Mr. Crofts.
4. A preliminary objection has been taken to the hearing of this application on the ground that the order of the Court below is an eminently just order and, at any rate nothing has been shown that it was beyond his jurisdiction.
5. It might be mentioned here, that, during the pendency of the application in revision in this Court, Mt. Hasan Bano died. There was a controversy about the legal heirs. The other heirs disclaimed all interest in her estate. Mt Saghirunnissa was the only heiress in the field. Exception was taken by Radha Kishan to the substitution of her name, in place of Mt. Hasan Bano, on the ground that she could be no heir to her grandmother. Her application for mutation was, in consequence, rejected on 6-5-1946.
6. It has been contended by the learned Counsel for the applicant that Mr. Baylis was perfectly within his rights in passing the order that he did, as it was open to him under Order 44, Rule 1, Civil P.C., to peruse the judgment and came to a conclusion of his own. It was not necessary for him to hear the counsel for the parties. This argument is only partially true.
7. The order of Mr. Baylis resolves itself legally into two parts. He must be deemed to have found the applicants paupers and also that they had a prima facie case. He was certainly within his rights in holding that they had a prima facie case under Order 44, Rule 1, Civil P.C., but had no right to come to an ex parte decision as regards pauperism. Mr. Shambhu Nath Seth, the learned Counsel for the applicant, has invited our attention to the amendment effected by the Allahabad High Could, which required Mr. Baylis to hear his client, even when he adjudicated upon the question whether the appellants had a prima facie case. Be that as it may, Mr. Baylis was not right in deciding the question of pauperism in favour of the applicants, without giving an opportunity to the other side to meet' this position.
8. On the merits, we are of opinion that the applicant or applicants have no case. On the facts stated above, even Mt. Sirajan's purchase was subject to the rnosrtgage of Lakshmi Narain or his SOD, Radha Kishan. So far as Yasin was concerned, he could not derogate from his own grant, Nazir, who stepped into his shoes, could not raise a plea which was not 'appropriate to his character as legal representative of the deceased' within the meaning of Order 22, Rule 4, Civil P.C. The applicants, who are the heirs of Yasin, are in the same position. Apart from this, Mt. Saghirunnissa, as has already been decided in the substitution proceedings, is not an heir of Mt. Hasan Bano. We are, therefore, of opinion that the application has no merits and must fail. We, therefore, dismiss this application with costs.