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Dharanidhar Boral Vs. Panchanan Saha and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal559,101Ind.Cas.15
AppellantDharanidhar Boral
RespondentPanchanan Saha and ors.
Cases ReferredSukhi v. Ghulam Safdar Khan A.I.R.
Excerpt:
- .....to the district judge, made before the decree final is passed, could be heard even after the final decree was passed a second appeal will not lie because by the time the subordinate judge dismissed the appeal the final decree had already been drawn up. we are not prepared to accept this contention. it appears to us, though there may be some; earlier rulings which may throw doubt as to whether when there has been a final decree an appeal against the preliminary decree can continue, to be now established that an appellant has certainly a right to have his appeal heard so long as it is lodged in the first appellate court before the final decree id passed. in this connexion we may refer to the case of nanibala dasi v. ichhamoyee dasi : air1925cal218 . now, if the right to prosecute the.....
Judgment:

1. In this case the plaintiff brought a suit for redemption. His case was that the predecessor of Defendant No. 4 owned Plots Nos. 1 to 8 and that Defendant No. 3 owned Plot No. 9 : and that they two morgaged these nine plots to Defendant No. 1 on the 11th June 1898. The predecessor of Defendant No. 4, however, sold Plots Nos. 2 to 8 to the present plaintiff on the 18th August 1898. Defendant No. 1 in the year 1910 sued on his mortgage without making the present plaintiff a party. He obtained a decree on the 1st February 1911, which in due course became final and the mortgaged property was put to sale on the 8th October 1912, and then Defendant No. 1 purchased Plot No. 9 and Defendant No. 2 the other plots. Subsequently, there appears to have been criminal proceedings. This suit was then brought by the plaintiff on the ground that he being the purchaser of the equity of redemption has not been affected by the sale in the year 1921. The first Court gave the plaintiff a decree holding that he would be entitled to redeem by paying the amount of the mortgage-decree and that the sum decreed would be taken as the whole debt and as the price of the mortgaged lands. An appeal was preferred against that preliminary decree which was passed on the 24th July 1922, by Defendant No. 2 to the District Judge, on the 3rd August 1922. On the 13th September 1922, the Commissioner appointed having apparently submitted his reports, the decree of the first Court was made by that Court final. No further appeal was lodged against that decree. The appeal, however, to the District Judge, which was finally heard by the Subordinate Judge, was not disposed of until 19th July 1924, and from that appeal against the preliminary decree second appeal was preferred to this Court on the 3rd November 1924. On the appeal coming up for hearing before us the learned vakil for the respondent raised a preliminary objection that this appeal is now incompetent. The first point as I gather is that though no doubt an appeal to the District Judge, made before the decree final is passed, could be heard even after the final decree was passed a second appeal will not lie because by the time the Subordinate Judge dismissed the appeal the final decree had already been drawn up. We are not prepared to accept this contention. It appears to us, though there may be some; earlier rulings which may throw doubt as to whether when there has been a final decree an appeal against the preliminary decree can continue, to be now established that an appellant has certainly a right to have his appeal heard so long as it is lodged in the first appellate Court before the final decree id passed. In this connexion we may refer to the case of Nanibala Dasi v. Ichhamoyee Dasi : AIR1925Cal218 . Now, if the right to prosecute the appeal can thus continue before the first appellate Court after the final decree is passed, speaking for myself I do not see how the right to second appeal provided by the Code of Civil Procedure from the first appeal can possibly be barred. In my opinion, therefore, this appeal is still competent to be heard.

2. As to the merits of the appeal it appears that in the first appellate Court the only point argued was whether the plaintiff had his right of redemption or not. The argument urged both in that Court and in this Court is that as the plaintiff took no proceedings to set aside the mortgage sale he cannot redeem. Reliance has been chiefly placed for this contention on the case of Ganpat Lal v. Bindabasini Prashad Narayan Singh [1920] 47 Cal. 924. There the decision arose out of a sale held in September 1902, that is to say, when Sections 85 to 90 of the Transfer of Property Act were still in force. It was there held that so long as the sale under the decree stood the right to redeem was extinguished but that at the time of the revision of the Code of Civil Procedure in 1908, these sections were repealed and Order 34 of the Code substituted and the words of Section 89 of the Transfer of Property Act and thereupon the defendant's right to redeem and the security shall both be extinguished were not carried into Order 34. This was pointed out by the Judicial Committee in the case of Sukhi v. Ghulam Safdar Khan A.I.R. 1922 P.C. 11 where it was held that where a puisne mortgagee has not been made a party to a suit in which the prior mortgagee has obtained a decree the puisne mortgagee is entitled in a subsequent suit to occupy the position which he would have had had he been a party. This is also the case with a purchaser in the present state of the law and, therefore, it must be held that it is not essential for the plaintiff first to proceed to get the mortgage sale set aside before he can bring a suit for redemption.

3. The second point raised is as to the terms on which the redemption should be allowed. Now the learned Munsif set out certain terms and they were on the basis of the mortgage-decree and it does not appear that this order was at all attacked in appeal or in the first Court, and in the grounds of appeal before us we were only asked to give Court interest at 12 per cent, instead of at 6 per cent on the general ground not to find that the basis on which the redemption has bees allowed is erroneous. In view of the fact that this was not raised before and that in the case coming before us for hearing there was no suggestion that the basis on which the Munsif has allowed the redemption was wrong we are not prepared at this stage specially in view of the fact that Defendant No. 2 was only a purchaser and was not one of the original mortgagees to vary this order of the Munsif which was not assailed in the appeal before the Subordinate Judge.

4. The result, therefore, is that the appeal is dismissed with costs.


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