1. The applt Jahangir Khan filed a suit in the Ct of City Munsif, Udaipur, against Karamdat Khan & the State Council Udaipur for an injunction restraining the defts from dispossessing the pltf from a house situated near Surajpol in the town of Udaipur. During the pendency of the suit Karamdat Khan executed a sale deed in favour of Mohan Lal resp & he died thereafter. The pltf Jahangir Khan alleging that there was no other legal representative of the deceased excepting his ownself got the name of Karamdat Khan struck off from the records without any substitute. On 6-12-1947, Mohan Lal filed an appln under Order 22 Rule 10, C. P. C, for the substitution of his name in place of that of Karamdat Khan on the ground that the property in dispute had been assigned to him by Karamdat Khan. The learned Munsiff however on the same day rejected the appln on the ground that Mohan Lal was not the heir of Karamdat Khan & his name could not be substituted in place of that of the deceased against the will of Jahangir Khan & that if he wanted to assert his claim he could institute a separate suit. Mohan Lal did not file any appln against this order. Ultimately on 23-12-1947 the suit was decreed.
2. The State Council went in appeal against this judgment & decree of the learned Munsiff to the Ct of learned Dist J., Udaipur. This appeal is dated 13-2-1948. Mohan Lal also filed an appeal on the 2-3-1948 & along with it presented an appln under Order 22 Rule 10, C. P. C, that he might be brought on the record in place of Karamdat Khan. Jahangir Khan was asked to show cause against this appln of Mohan Lal. After hearing the objections of Jahangir Khan the learned Dist J. made Mohan Lal a party to the appeal under Order 22 Rule 10 vide his order dated 4-5-1948. Against this order Jahangir Khan did not file any appeal. The learned Dist J. heard both the appeals & by a single judgment dated 29-9-1948 set aside the decree of the first Ct & remanded the suit for completion of the deft's evidence & for disposal.
3. The pltf Jahangir Khan had come in appeal against this appellate order of the learned Dist J. & has made the Govt of the United State of Rajasthan & Mohan Lal resps therein. Hereinafter in this judgment Jahangir Khan will be referred to as the applt the Govt of the United State of Rajasthan as the resp 1 & Mohan Lal the resp 2.
4. A preliminary objection has been taken on behalf of both the resps that the order of the learned Dist' J. is not open to any appeal. It has been argued that the only order of remand which is appealable is an order under Order 41 Rule 23, C. P. C. The order under appeal is not an order under Order 41 Rule 23, C. P C. & therefore no appeal lay against it. On behalf of the applt it has been argued that the order of the learned Dist J. does come under Order 41 Rule 23, C. P. C.
5. On careful consideration of the argument of the learned counsel for the parties we are of opinion that the order in question is not an order under Order 41 Rule 23, C. P. C. An order: under the said provision of the Code presupposes that the lower Ct has disposed of the suit upon a preliminary point. The learned Munsiff however did not dispose of the suit on preliminary point. He considered all the issues in the suit & after giving his findings thereon decreed the suit. The suit was therefore decided on merits & not upon a preliminary point. The order of the learned Judge cannot therefore be under Order 41 Rule 23. The only order of remand appealable under the Code is an order of.' remand under Order 41 Rule 23. The order in question is therefore not appealable.
6. An oral request was made on behalf of the applt that if the Ct holds that the order is not appealable, the appeal might be treated as a revn. The parties were therefore heard on merits. It was argued on behalf of the applt that the resp 2 was not a party to the suit. He had therefore no right to appeal against the decree of the learned Munsiff. It was further argued that the appln of the resp 2 for substitution of his name under Order 22 Rule 10, C. P. C. was dismissed, but no appeal against this order was brought under Order 43 Rule 1 (1). He had therefore no right to bring an appeal against the decree after the period for an appeal under Order 43 Rule 1 (1) had expired. The order of remand of the lower appellate Ct was therefore without jurisdiction & interference could be made in revn.
7. On behalf of the resp it has been argued that the resp 2 being an assignee from Karamdat Khan could be substituted in his place1 as the decree adversely affects the interest of the resp 2. If the decree for an injunction against the resp 1 subsists, the resp 2 would not be able to get possession of the property. It was argued that the law allowed the substitution of his name in place of the Karamdat Khan under Order 22 Rule 10, C. P. C. An appln was made by him to the first Ct for substitution of his name but it was rejected. Only about a fortnight after the rejection of his appln thedecree was passed. He had therefore no sufficient time to file an appeal against the said order before the decree. He was consequently compelled to bring the appeal against the original decree & applied to the appellate Ct for bringing his name on the record under Order 22 Rule 10 in place of Karmdat Khan deceased. his appln was granted by the appellate Ct & his name was brought on the record by theorder dated 6-5-1948. Now when the decree of the first Ct had been set aside, the applt cannot complain why his (resp 2's) name has been, brought on the record. As regards the question, that he, having filed no appeal against the order rejecting his appln for substitution by the first Ct, was not entitled to appeal against the decree, it was argued that even though he did not file an appeal against the said order, he was entitled to appeal against the decree & agitate the point of his substitution in the -appeal. The ruling of their Lordships of the P. C. reported in 'Mohesur Singh v. Bengal Govt 7 MIA 283: (1 Sar 645 PC) has been relied upon in this connection.
8. Having considered the argument of the learned Counsel for the parties we find that there is no cause for interference in revn. It appears from a ruling of a D. B. of Allahabad H. C. in 'Banarsidas v. Sheodarshandas', AIR (5) 1918 All 309: (45 IC 451) that even if an assignee did not make any attempt to bring his name on the record in the first Ct he can file an appeal if he applies to the appellate Ct to be brought on the record as successor to his assignee. Of course in that case the name of the assignee was not brought on the record in the appellate stage as that he never applied to the appellate Ct in that behalf. But it appears from their Lordship's judgment that he would have been heard in the appeal if he had applied to the Ct to be brought on the record & the Ct had allowed his appln. In the present case an appln was made by the resp 2 to the appellate Ct to bring his name on the record under Order 22 Rule 10, C. P. C. & after allowing opportunity to the applt to object, the name of the resp 2 was brought on the record by the order dated 8-5-1948. The resp 2 had made an attempt for his name to be brought on the record in the first Ct also by his appln dated 6-12-1946 but unfortunately it failed. Their Lordships of the Madras H. C. also, in a ruling reported in 'Subba Pillai v. Ranga Swami', AIR (5) 1918 Mad 409: (40 IC 846), have held that where a mtgee who purchases the property in execution of a decree for enforcement of the security is resisted in taking possession & driven to instituting a fresh suit to establish his mtge, he can be permitted to appeal against the decree as representing the mtgor or his representative against whom the decree was passed. In that case the mtgee did not figure as a party Jin the suit but was allowed to appeal after his name had been brought on the record in pursuance of his appln filed along with the appeal.
9. In view of the above rulings it cannot be said that the lower Ct either exercised a jurisdiction not vested in it by law or acted illegally or with material irregularity in the exercise of its jurisdiction. Even if it be granted that the order of the lower Ct was bad in law, the mere fact that an order is not legally correct would not entitle a party to interference in revn.
10. Similarly, the question whether the objection of the resp 2 should have been heard in the appeal against the decree, when he had not appealed against the order under Order 22 Rule 10, C. P. C, within the time prescribed by law is entirely a question of law. No revn lies on a mere mistake of law. It lies only when as has been said above the lower Ct acts illegally or with material irregularity in exercise of its jurisdiction. This has been so held in a recent ruling of their Lorships of the P. C. reported in 'Venkatagiri Ayyangar v. H. R. E. B., Madras', AIR (36) 1949 PC 156: (76 IA 67).
11. For the above reason we do not find any cause for interference with the order of the lower Ct in revn.'
12. The appeal treated as revn is dismissed but under the circumstances of the case the parties shall bear their own costs thereof.