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Jadunath Roy and ors. Vs. Murari Mohan Mullick and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1931Cal594
AppellantJadunath Roy and ors.
RespondentMurari Mohan Mullick and ors.
Cases ReferredKhetterpal Sritrutno v. Khelal Kristo Bhuttacharjee
Excerpt:
- .....after having made the purchase on 11th january 1930. these applications were dealt with by the learned judge on 29th january 1930, the plaintiffs in the partition suit having in the meantime filed objections to the appellants' applications. the learned judge made the following order:i do not consider necessary at this stage to make the petitioners parties to the suit. the commissioner will however allow the petitioners facilities to be present at the commission on behalf of their alleged vendor defendant 6. the commissioner may also hear their submission with regard to properties nos. 1 to 20, schedule 'b' as if they are made on behalf of defendant 6.2. the sale was thereafter confirmed and upon that a further application was made by the appellants renewing their prayer to be added.....
Judgment:

1. This appeal has been preferred from an order dated 12th April 1930 passed by the Subordinate Judge, Second Court, 24 Pargannas. The order has been passed in a suit for partition being title Suit No. 190 of 1929. In this suit a vary large number of parties are concerned and one of the defendants therein is defendant 6 son of one Bhuban Mohan Mallik deceased. The suit was instituted on 30th August 1929 and a preliminary decree was passed on it on 1st October 1929. After the decree was passed as aforesaid a Commissioner was appointed to make the allotments. Now, Bhuban Mohan Mallik the father of defendant 6 had prior to the institution of the aforesaid suit for partition and on certain dates in the years 1923 and 1924 affected certain mortgages and further charges in favour of the appellants in respect of his one-eighth share in some of the properties which subsequently came to form the subject-matter of the aforesaid partition suit. Bhuban Mohan Mallik died in April 1925. In June 1926 the appellants instituted a suit on the original side of this Court for realization of the amounts due upon the said mortgages and further charges and obtained preliminary decree in that suit on 12th January 1928. In execution of the said decree the properties mortgaged and charged as aforesaid were put up to sale and the mortgagor's share therein was purchased by the appellants on 11th January 1930. The appellants had on 12th December 1929 and prior to their purchase made an application before the learned Subordinate Judge in connexion with title Suit No. 190 of 1929, namely the partition suit aforesaid, alleging that they as well as the receiver appointed in the mortgage suit were necessary and proper parties to the partition suit and praying to be so added as parties thereto. They made a further application for the said purpose on 14th January 1930, that is to say, after having made the purchase on 11th January 1930. These applications were dealt with by the learned Judge on 29th January 1930, the plaintiffs in the partition suit having in the meantime filed objections to the appellants' applications. The learned Judge made the following order:

I do not consider necessary at this stage to make the petitioners parties to the suit. The Commissioner will however allow the petitioners facilities to be present at the commission on behalf of their alleged vendor defendant 6. The Commissioner may also hear their submission with regard to properties Nos. 1 to 20, Schedule 'B' as if they are made on behalf of defendant 6.

2. The sale was thereafter confirmed and upon that a further application was made by the appellants renewing their prayer to be added as parties to the suit in order that they might appear before the partition Commissioner and put their case before him with regard to the allotments that he was to make. This application was dealt with by the learned Judge on 12th April 1930 by an order which ran in these words:

Pleaders heard. The petitioner need not be made a party at this stage. They have already been given facility for watching the proceedings before the Commissioner, and to make their submissions to him. 1 may look into the matter at the time of final hearing.

3. This is the order from which the present appeal has been preferred.

4. A preliminary objection was taken as to the maintainability of this appeal. This objection must be overruled in view of the fact that the application that the appellants made is one which should be treated under Order 22, Rule 10, Civil P.C., asking the leave of the Court to be added as parties in order that the proceeding in the suit might be continued against them as one of the parties. From an order passed under this rule granting or refusing the leave an appeal, it is not disputed, would lie, in accordance with the provisions of Order 43, Rule 1, Clause (i). It is true that there are some observations in the decision of the Judicial Committee in the case of Manindra v. Ram Kumar Lal A.I.R. 1922 P.C. 304 which may favour the view that the rule applies only to the case of substitution and not to the case of addition of a party. It is not clear however whether their Lordships intended to go that length. The question however is not very material, because treating the appellants' application as one for addition of parties independently of that rule, we can deal with the matter in revision, an application for which purpose is also before us.

5. On the merits we are of opinion that the order which the learned Judge has passed and from which this appeal has been taken ought not to be allowed to stand. So far as this Court is concerned whatever view may have been taken by the other High Courts, a mortgagee is not regarded as a necessary 'party in a suit for partition provided of course that the question of the mortgagor's interest is not in controversy. For this purpose no authority need be cited. Reference may be made to two cases, first to the case of Mohindro Bhoosun Biswas v. Shoshee Bhoosun Biswas [1880] 5 Cal. 882 and secondly to the case of Khetterpal Sritirutno v. Khelal Kristo Bhuttacharjee [1894] 21 Cal. 904. Although not a necessary party it has often been laid down that if a mortgagee comes in and makes an application to be added as a party the Court frequently does and should give leave to him to attend the proceedings as a quasi party. This indeed is what has been done by the learned Subordinate Judge by the two orders which have been quoted above and from the last of which the present appeal has been preferred. But the position in the present case is somewhat different because the order passed on 12th April 1929 was passed on an application of the appellants when they were fulfilling not merely the character of mortgagees but also they had made a purchase of the mortgagor's interest at the sale held on 11th January 1930 and such sale had already been confirmed. In those circumstances in the face of the remarks that have from time to time been made by the learned Judges in this Court the leave should not have been refused to the appellants to come in the proceedings as parties thereto.

6. Reference in this connexion may be made to the observations of Wilson, J. in the ease of Mohindro Bhoosun Biswas v. Shooshee Bhoosun Biswas [1880] 5 Cal. 882 where the learned Judge refusing the application of a mortgagee to be added as a party in a certain partition suit before the preliminary decree was passed said that in case of a decree for partition being made the mortgagees should have leave to come in and attend the partition proceedings. From the observations made as aforesaid it would appear that the view of the learned Judge that even a mortgagee, without being anything more should have leave if he comes in after a preliminary decree for partition has been passed. In the case of Khetterpal Sritrutno v. Khelal Kristo Bhuttacharjee [1894] 21 Cal. 904. Sale, J., observes at p. 910 as follows:

If however the mortgagee had proceeded to a sale pending the partition, the purchaser would have become a necessary party to the partition suit, and would in the matter of costs have been subject to the liability of his predecessor-in-title.

7. No hard and fast rule can be laid down which can apply to all cases. But in view of the fact that in the present case the sale in which the appellants had purchased had been confirmed and they had repeatedly made applications to the Court asking leave to be added as parties and. what is more, the Court having considered these applications to be reasonable in so far as the Court thought it necessary to give the appellants all possible facilities of representing their case before the Commissioner in order that their rights might not be injured we fail to understand what particular reason persuaded the learned Judge in refusing the appellants' application for leave to be added as parties. It is quite true that a certain amount of discretion is allowed to Courts in the matter of leave such as is contemplated under Rule 10, Order 22 of the Code; but in the case before us I do not see any reason why that discretion should be exercised as against the appellants before us.

8. In this view of the matter we are of opinion that the appeal should be allowed and we accordingly set aside the order which has been passed by the learned Subordinate Judge and direct that the appellants be added as parties to the proceedings as from 12th April 1930 on which date their last application was considered and rejected by the learned Judge. It goes without saying that all the proceedings taken before the aforesaid date will be binding upon them just as much as they would be binding upon their predecessor-in-interest.

9. No order is made as to costs.

10. The rule is discharged. No order is made as to costs.


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