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Equitable Trust Co. and ors. Vs. Hafiz Mohammad Halim and Co. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1928All97; 108Ind.Cas.699
AppellantEquitable Trust Co. and ors.
RespondentHafiz Mohammad Halim and Co.
Cases ReferredBalkrishna Udayar v. Vasudeva Aiyar A.I.R.
Excerpt:
- - he contended that the property belonged to the mortgagor and had not passed to the mortgagee under his auction-purchase and that the suit was bad by reason of non-joinder of the mortgagor......to the plaintiff; and secondly, the court below had acted with material irregularity in the exercise of jurisdiction in trying the suit behind the back of the mortgagor. their lordships of the privy council affirmed the decision of the chief commissioner, but in doing so they did not lay down any broad proposition of law for the guidance of indian courts. they affirm the judgment of the chief commissioner in view of the circumstances of the case. the case was not remanded by the privy council for further trial after impleading the mortgagor in exercise of any powers under order 1, rule 10, clause 2, civil p.c., and as a matter of fact no application was made in this case for amendment of the claim by addition of parties, or substitution of other persons in place of the plaintiff.....
Judgment:

Sen, J.

1. The facts giving rise to the present application have been stated in First Appeal from Order No. 53 of 1927, just disposed of by us, and do not require any further recapitulation.

2. A preliminary objection has been taken by the opposite party that the application for revision is not competent. It has been argued that the order in question is an interlocutory order, and that no 'case' has been 'decided' within the meaning of Section 115, Civil P.C., and, in consequence, no application for revision lies to this Court. In answer to this contention it has been argued that the applicants were necessary parties to the action, and the Court has committed material irregularity in the exercise of its jurisdiction by disallowing the petition, and thereby excluding a party whose presence was necessary in the action, and without whose presence the action could not be satisfactorily decided.

3. Reliance has been placed in Umed Mal V. Chand Mal A.I.R. 1926 P.C. 142. In this case the mortgagee decree-holder claimed possession of a certain plot of land by right of purchase under his mortgage decree. The suit was directed against a third party, who happened to be in possession. He contended that the property belonged to the mortgagor and had not passed to the mortgagee under his auction-purchase and that the suit was bad by reason of non-joinder of the mortgagor. The first two Courts decreed the plaintiff's claim but the Chief Commissioner of Ajmer and Merwara, on revision, dismissed the suit on two grounds, firstly, on a proper construction of certain material documents which did not prove that the land belonged to the plaintiff; and secondly, the Court below had acted with material irregularity in the exercise of jurisdiction in trying the suit behind the back of the mortgagor. Their Lordships of the Privy Council affirmed the decision of the Chief Commissioner, but in doing so they did not lay down any broad proposition of law for the guidance of Indian Courts. They affirm the judgment of the Chief Commissioner in view of the circumstances of the case. The case was not remanded by the Privy Council for further trial after impleading the mortgagor in exercise of any powers under Order 1, Rule 10, Clause 2, Civil P.C., and as a matter of fact no application was made in this case for amendment of the claim by addition of parties, or substitution of other persons in place of the plaintiff even after the period of limitation on the original cause of action expired. In view of these facts the case does not appear to be of any great assistance to us. It is not desirable to add or substitute as parties to an action persons whose right to sue has already become time barred: see Kali Das v. Nathu Bhagwan [1883] 7 Bom. 217, Sishan Patter v. Veera Raghavan Patter [1909] 32 Mad. 284, Fatmabai v. Pirbhai Virji [1897] 21 Bom. 580.

4. The word 'case' in Section 115, is more comprehensive than the word 'suit.' But the word 'case' has not been defined by the Code. A mere 'interlocutory' order has not been held by the majority of this Court to amount to a 'case decided' within the meaning of Section 115, Civil P.C.: see Buddhu Lal v. Mewa Ram A.I.R. 1921 All. 1. The same view was taken by a Full Bench of the Lahore High Court in Lal Chand v. Behari Lal A.I.R. 1924 Lah. 425. It is the settled law that a finding on an issue or part of an issue not going to the root of the case cannot be revised by the High Court under Section 115, Civil P.C. In the case of Balkrishna Udayar v. Vasudeva Aiyar A.I.R. 1917 P.C. 71 their Lordships of the Privy Council are reported to have said:

It will be observed that Section 115 applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved.

5. We hold that there was no wrong assumption or irregular exercise of jurisdiction by the Court below in dealing with the application, dated the 8th November 1926.

6. The result is that we sustain the preliminary objection and dismiss this application with costs.


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