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Gaya Prasad and anr. Vs. Indo Mati - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1897)ILR19All142
AppellantGaya Prasad and anr.
Respondentindo Mati
Excerpt:
.....code, section 372; sections 2, 244, 588 - order dismissing application to be brought on the record--''decree'--'order'--appeal. - - 3. the court below should have issued notice to the other side, and first of all determined the question as to whether the applicant was a representative, and, if she was what she alleged herself to be, she should have been brought on the record, and in that event the court should have gone on to consider whether or not the time should have been extended under the proviso to section 87 of the transfer of property act, and that would depend upon whether the applicant succeeded in showing good cause for the postponement. it would be premature on our part to express any opinion as to whether there was good cause or not, as the other side should be..........application of the mortgagor. the application was dismissed without notice to the other side. the applicant brought this appeal.2. a preliminary objection has been taken on behalf of the respondents that the appeal does not lie. it is contended, and we think rightly, that the application to be brought upon the record was one under section 372 of the code of civil procedure, and in support of the argument that the appeal does not lie clause 2 of section 588 of the code has been used to show that the only appeal given by section 588 from an order passed under section 372 is an appeal from an order dismissing an objection to an application made under section 372. there is no doubt that, if the allegations as to title of the appellant are true, the interest of the mortgagor had vested in.....
Judgment:

John Edge, Kt., C.J. and Blair, J.

1.The appellant here, Rani Indo Mati, applied to be brought on the record of a suit for foreclosure in which a decree under Section 86 of the Transfer of Property Act, 1882, had been made, and to have the day appointed for the payment postponed. She claimed to be the representative in interest of the mortgagor, who was the defendant in the suit. The court below dismissed her application, apparently on the ground that she was not a party to the record, and that the day appointed by the decree for payment had been twice postponed on the application of the mortgagor. The application was dismissed without notice to the other side. The applicant brought this appeal.

2. A preliminary objection has been taken on behalf of the respondents that the appeal does not lie. It is contended, and we think rightly, that the application to be brought upon the record was one under Section 372 of the Code of Civil Procedure, and in support of the argument that the appeal does not lie Clause 2 of Section 588 of the Code has been used to show that the only appeal given by Section 588 from an order passed under Section 372 is an appeal from an order dismissing an objection to an application made under Section 372. There is no doubt that, if the allegations as to title of the appellant are true, the interest of the mortgagor had vested in her before she made her application to the Court below. It appears to us that the dismissal of her application was an adjudication on the representative right which she claimed, and, as an order under Section 372 dismissing an application is not an order specified in Section 588, the order dismissing her application would be a decree as that word is defined in Section 2 of the Code of Civil Procedure, and in our opinion an appeal lay, the case coming within Section 244 of the Code.

3. The Court below should have issued notice to the other side, and first of all determined the question as to whether the applicant was a representative, and, if she was what she alleged herself to be, she should have been brought on the record, and in that event the Court should have gone on to consider whether or not the time should have been extended under the proviso to Section 87 of the Transfer of Property Act, and that would depend upon whether the applicant succeeded in showing good cause for the postponement. It would be premature on our part to express any opinion as to whether there was good cause or not, as the other side should be allowed an opportunity of producing evidence on the point if necessary, We set aside the order of the Subordinate Judge and remand the case under Section 562 of the Code of Civil Procedure to his Court for the application to be disposed of on the merits. The costs of this appeal will abide the result.


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