1. This is a revision against the order of the Additional District Judge, Jodhpur, refusing to reverse the order of the Sub-Judge, Jodbpur, dated 6th November 1948.
2. The facts which gave rise to this revision are that the ancestors of one Kushal Raj mortgaged certain house property to the ancestors of Shivnath Mal on 14th December 1850 for a sum of Rs. 1431 (Bijeshahi). After the expiry of 80 years which is said to be the period of redemption of mortgage in Marwar, Sardar Mal the non applicant died a suit for possession of the said property by pre-emption while the said Suit was still pending. Kushal Raj effected a second mortgage of the said property on 22nd October 1936 in favour of Dr. Niranjan Nath for a sum of Rs. 225 with authority to pay up the first mortgage and the value of improvements and interest thereon, which were mentioned to be Rs. 6500. The suit for pre-emption was dismissed on the ground that the first mortgage was a subsisting one.
3. Sardarmal thereafter purchased the equity of redemption from Kushal Raj on 24th May 1944 and instituted a suit for redemption on 3rd August 1944 against Shivnath Mal, his two sons Jethmal, Meghraj and his grandson Poonamchand as successors in interest of the first mortgagee and Dr. Niranjan Nath the second mortgagee. The suit was valued at Rs. 1526. The suit was contested by the defendants on various points including a plea that Dr. Niranjan Nath had paid off the first mortgage by making a payment of Rs. 6500 as mentioned in the deed of second mortgage to the first mortgagee on 7th December 1939 and redemption could only be claimed on payment of Rs. 6725 plus interest. Another plea taken was that the suit was beyond the jurisdiction of the Court. While the issue as to jurisdiction was being tried, Dr. Niranjan Nath made an application on 3rd February 1943 that he had assigned his rights of mortgagee to one Gordhan for a consideration of RS. 6991 on 22nd December 1947 and, therefore, his name may be removed from the array of the defendants. The petitioner meant that Gordhan be substituted in his place. This was opposed by the plaintiff on the ground that be had no knowledge of the assignment, which even if it came into existence was a collusive one, and brought about in the same manner as the second mortgage already characterised as collusive. It was also urged that the plaintiff did not consider it necessary to make Gordhan a party as he would be bound by any decree that may be passed against Dr. Niranjan Nath and the assignment was hit by the doctrine of lis pendens.
4. While the petition of Dr. Niranjan Nath was under consideration, Gordhan also made an application on 4th March 1943, intimating the Court that he had taken the assignment of the mortgagee rights from Dr. Niranjan Nath and should be made a party in place of Dr. Niranjan Nath. The learned Sub-Judge on 31st March 1948, rejected the petition of Gordhan on the ground that be had taken the assignment of the mortgagee rights during the pendency of the suit at his own risk. He observed that the trial of the case even on the preliminary issue had taken more than 4 years and it would still prolong the enquiry as the assignee may take up a plea of the lack of pecuniary jurisdiction in view of the consideration for assignment being Rs. 6991.
5. On 11h October 1943, an application was presented on behalf of Dr. Niranjan Nath that his petition of 3rd February 1948 had remained still undisposed of and that the name of Gordhan may be permitted to be substituted in his place. This application was opposed by the plaintiff and the learned Sub Judge passed an order on 5-11-1948 that his earlier order of 31st March in respect of Gordhan's application purported to dispose of the application of Dr. Niranjan Nath also and no fresh order was called for. Dr. Niranjan Nath filed an appeal and the same view was upheld. It is against this order that the present revision has been filed.
6. A preliminary objection was raised that the matter was not a 'case decided' within the meaning of Section 115, Civil P. C., and that the order passed was entirely within the discretion of the Court and the decision did not involve any question of jurisdiction, the non-exercise thereof or failure to exercise it or acting illegally or with material irregularity in the exercise of the same. The first objection is based on the Allahabad view and as held recently in a single Bench decision of this Court, In re Gambhirmal v. Gyanchand, civil Revision No. 26 of 1949 decided on 1-11-1949: (A. I. R. (37) 1950 Raj. 20) there is no need to interpret the word 'case' in that restricted sense but the word 'case' should be construed to be wide enough to include the decision on any substantial question in controversy between the parties affecting their rights even though such order is passed in the course of the trial of the suit. This view was taken following the Full Bench case of the Lahore High Court Bibi Gurdevi v. Mohamed Bux, A. I. R. (30) 1943 Lab. 65 : (I. L. R. 1943 Lab. 267 F. B.).
7. As to the next objection even in matters which are within the discretion of Court, the discretion has to be exercised judicially and not in an arbitrary manner. The doctrine of lis pendens could never be a bar to the bringing on record of the assignee since special provision has been made under Order 22, Rule 10, Civil P. C., for this very contingency. There is no doubt that the assignee even if be does not become a party is bound by the decision against the assignor who is already a party to this suit, but the option to become a patty or to let the assignor carry on the litigation rests with the assignee and as held in several cases, the leave to substitute the assignee in place of the assignor should not be unreasonably refused Joti Lal v. Sheodhayan Prasad, A. I. R. (23) 1936 Pat. 420; (15 Pat. 607). In the present case the assignment was affected on 22nd December 1947 and on the first hearing thereafter i.e., 3rd February 1948 Dr. Niranjan Nath had made the application. It would also be clear that the only person interested in contesting the suit would be the assignee. The first mortgage was alleged to have been redeemed by Dr. Niranjan Nath and the latter assigned all his rights to Gordhan. It would result in great injustice if the only person interested in contesting the suit is not brought on record and the matter wag left to the sweet will of a person who has no interest left in this case.
8. The learned advocate for the appellants relied on Krishnaji v. Bhikchand, A. I. R. (29) 1942 Bom. 32: (I. L. R. (1941) Bom. 629), Sambha v. Desru A.I.R. (17) 1930 Nag. 51 (1): (121 I.C. 672) and In re Atiullah Khan A.I.R. (28) 1941 Oudh 495 : (195 I. C. 224) for the proposition that no interference can be made in revision specially as the order rejecting Gordhan's petition is final. These cases, however, are distinguishable. In the Nagpur case the suit was brought for the specific performance of a contract against the Manager of the joint Hindu family and the other members wanted to become a party to it. The application was opposed by the plaintiff who alone was likely to be affected as the applicants were not necessarily bound by the decision. In the Bombay case, the judgment really turned on whether Order 22, Rule 10 was applicable to execution proceedings and whether a second appeal lay from the order rejecting an application to add a party. Their Lordships held that the said provision of law applied to execution proceedings and a second appeal was not maintainable. There is a brief passage in the judgment of one of the two Judges as follows:
'We have been asked to treat this appeal as a revision application. But as the power to add the name of any person upon whom any interest has devolved as a party to the proceedings is one within the discretion of the Court, we see no reason to allow the application to be argued as an application in revision.'
The merits of the case were not at all gone into in this case. In the Oudh case, the assignor or the assignee did not make any application for many years after the alleged assignment and the suit was allowed to be proceeded entirely against the assignor. It was only on the death of the assignor that the assignees were attempted to be brought on record long after the period of limitation for bringing on record a legal representative on the ground that the same persons were the assignees and His Lordship observed:
'The present application was made under Rule 10, Order 22 merely with the object of enabling the appellant to get out of the awkward position in which he stood owing to his having failed within three months to make an application for substitution of the deceased and I dismissed it accordingly.'
9. The plain provisions of Order 22, Rule 10, Civil P. C., are, that in cages of assignment, creation or devolution of any interest during the pendency of the suit other than those dealt with in the preceding Rules of that Order, the suit may, by leave of the Court, be continued by of against the person to or upon whom such interest has come or devolved. While it is no doubt the privilege of the assignee to pray to the Court for being permitted to be brought on record, there is no bar to the assignor also making such application since it is possible that the assignor may not like to shoulder the responsibility of continuing or contesting the suit as the case may be any further. The order of rejection of Gordhan's petition did not in so many words mention rejection of the application of Dr. Niranjan Nath also. If it had been so done Dr. Niranjan Nath would have also become entitled to file an appeal which in the absence of any order of rejection of his petition, he was unable to do. The two Courts have fail, ed to exercise their jurisdiction in considering that the application bad already been disposed of.
10. Assuming that the same order disposed of the petition of Dr. Niranjan Nath, it would appear that the only reason given in the order is that the assignment was made during the pendency of the suit. But as observed earlier this is exactly the contingency for which Order 22, Rule 10 has been enacted and provides for. The delay in the trial of the suit could not be any ground for the refusal of the petition since no further delay was likely to be caused on this score. The plea of lack of pecuniary jurisdiction had already been taken and the assignment made during the pendency of the suit could not affect that question which had to be decided on the pleadings as they stood. In rejecting the petition of Dr. Niranjan Nath, therefore, the lower Court committed an error of procedure likely to affect the decision of the case, as the only person interested in contesting the suit had been prevented from contesting the suit. As held by their Lordships of the Privy Council in a recent decision reported in Joy Chand v. Kamakausha, A. I. R. (36) 1949 P. C. 239 : (76 I. A. 131). It would amount to a failure to exercise jurisdiction within Clause (a) of Section 115 of the Code. Reference may also be made to Venkatagiri v. Hindu Religious Endowments Board, Madras, A. I. R. (36) 1949 P. C. 156 : (76 I. A. 67) where it has been held that Clause (c) of Section 115 would mean that the order of the Subordinate Court is in breach of some provision of law or involves some error of procedure in the course of the trial which is material in that it may affect the ultimate decision.
11. As to the propriety of bringing the assignee on record, reference may be made to Ahmedbhoy v. Vulleebhoy, 8 Bom. 323. In that case, one Ahmedbhoy sued Vulleebhoy to establish his right to attach a certain house in execution of a decree. Vulleebhoy had mortgaged the property to Hassanbhoy and after the suit had been filed, entered into an agreement with the mortgagee to sell the house to him, The agreement provided that Vulleebhoy should continue to defend the suit and if the result was against him, Hassanbhoy was at liberty to cancel the contract of sale. Subsequently Vulleebhoy wrote to Haasanbhoy declaring his intention of abandoning his defence. Hassanbhoy thereupon applied to be made a defendant in order to protect the house from the plaintiff. Their Lordships observed that :
'If the Court were to prevent Hassanbhoy from defending the suit, the grossest possible injustice might be the result.'
and their Lordships allowed Hassanbhoy to be made a patty defendant subject to his being bound by all the previous proceedings in the suit. In Kristo Kumar v. Girishchandra, A. I. R. (S) 1915 Cal. 171 : (27 I. C. 704), their Lordships of the Calcutta High Court in the exercise of revisional jurisdiction allowed the assignee to become party defendant in the suit although the opposition was based on the ground that the assignment was fictitious and without consideration. We consider that this is a case for interference in revision and direct that Gordhan should be made a party defendant to the suit. He will be bound by the previous proceedings in the suit and will not be permitted to take up any new plea not already set up by his predecessor-in-title.
12. The costs of this petition and in the Court below will be costs in the cause.