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PETITIONER: Sm. SAILA BALA DASSI

       Vs.

RESPONDENT: SM. NIRMALA SUNDARI DASSI AND ANOTHER

DATE OF JUDGMENT: 14/02/1958

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA DAS, SUDHI RANJAN (CJ) SARKAR, A.K. BOSE, VIVIAN

CITATION:  1958 AIR  394            1958 SCR 1287

ACT: Civil  Procedure-Addition of Party-Tran sfer Pendente  lite- Appeal  filed by tyansferor-Right of transferee to  continue appealCode of Civil Proceduye (Act 5 of 908), s. 146, 0. 22, Y. IO.

HEADNOTE: The  second respondent sold the properties to the  appellant in  ,952  and the deed of sale recited that  the  properties were  sold free of all encumbrances.  The  first  respondent who  had  obtained  a  mortgage decree  in  respect  of  the properties in 1935 did not take any steps to have the decree drawn  up as required under the Original Side Rules  of  the Calcutta   High  Court  until  1954,  when   she   commenced proceedings  for  sale  of the  mortgaged  properties.   The second respondent raised the objection that the execution of the  decree was barred by limitation but that was  overruled by  a single judge of the High Court and an  appeal  against that   order  was  preferred  by  the   second   respondent. Apprehending  that the second respondent might enter into  a collusive arrangement with the first respondent with a  view to  defeat her rights, the appellant made an application  in the  High  Court  under 0. 22, r. 10 of the  Code  of  Civil Procedure praying that she might be substituted in the place of the second respondent, or in the alternative, be  brought on  record as additional appellant.  The High  Court  having dismissed the application, the appellant brought the present appeal: Held,  that the application could not be sustained under  0. 22,  r.10,  of  the  Code of  Civil  Procedure  because  (i) assuming that 1288 the  suit  was considered as having been pending  until  the decree  was drawn up in 954 no application was made  to  the Court  where the suit was pending as provided in 0.  22,  r. 10, and (ii) the application made to the appellate Court was also  not within 0. 22, r. 10, as the transfer  in  question was  made prior to the filing of the appeal and  not  during its pendency. The application, however, falls within s. I46 of the Code of

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Civil Procedure and the appellant is entitled to be  brought on record since an appeal is a proceeding within the meaning of that section and the right to file an appeal carries with it  the right to continue an appeal which had been filed  by the person under whom the appellant claims. Jugalkishore Sayaf v. Raw Cotton Ltd., [1955] I S.C.R. 1369, Sitharamaswami  v. Lakshmi Narasimha, (1918) I.L.R. 41  Mad. 51O  and Muthia Chettiar v. Govinddoss  Kyishnadoss,  (1921) I.L.R. 44 Mad. gig, relied on.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No.350 of 1957. Appeal  by special leave from the judgment and  order  dated August  6, 1956, of the Calcutta High Court on a  notice  of motion in Appeal No. 152 of 1955. N. C. Chatterjee and P. K. Mukherjee, for the appellant. B. Sen and P. K. Ghosh (for P. K. Bose), for respondent  No. 1. 1958.  February 14.  The Judgment of the Court was delivered by VENICATARAMA AIYAR J.-This is an appeal against an order  of the  High Court of Calcutta dated August 6, 1956,  rejecting the application of the appellant to be brought on record  as appellant in appeal No. 152 of 1955 pending before it. The second respondent, Sudhir Kumar Mitter, was the owner of two  houses, No. 86/1, Cornwallis Street and No. 7-C,  Kirti Mitter  Lane,  Calcutta.   On May 19, 1934,  he  executed  a mortgage for Rs. 3,000 over the said houses in favour of the first respondent, Sm. Nirmala Sundari Dassi.  She instituted Suit  No. 158 of 1935 on this mortgage, and obtained a  pre- liminary  decree  on March 8, 1935.  The  matter  then  came before  the  Registrar for taking of accounts,  and  by  his report dated July 23, 1935 he found that a sum 1289 of Rs. 3,914-6-6 was due to her, and on that, a final decree was passed on April 20, 1936.  Under r. 27 of ch. 16 of  the Original Side Rules of the Calcutta High Court, a person  in whose favour a decree is passed has to apply for drawing  up of  the decree within four days from the date thereof.   The rule then provides that " if such application for drawing up a decree or order is not made within the time aforesaid, the decree or order,shall not be drawn up except under order  of Court  or a Judge to be obtained, unless otherwise  ordered, by  a petition ex parte ". The importance of this  provision is that until a decree is drawn up as mentioned therein,  no certified  copy  thereof would be issued to  the  party  and without  such  a certified copy,  no  execution  proceedings could be taken. The  first respondent who had acted with such  alacrity  and speed  in  putting  her mortgage in  suit  and  obtaining  a decree,  took no steps whatsoever to have the  decree  drawn up,  for  nearly  18 years.  On May  12,  1952,  the  second respondent sold both the houses to the appellant herein  for a  sum  of  Rs. 60,000 which was,  it  is  stated,  utilised largely for discharging prior mortgages on which decrees had been obtained and execution proceedings taken.  The deed  of sale  recites  that  the properties were sold  free  of  all encumbrances.  The first respondent who had so far taken  no steps to have the decree drawn up now bestirred herself, and on February 17, 1954 obtained an ex parte order under r.  27 aforesaid,  granting her leave to draw up and  complete  the decree.   That having been done pursuant to the  order,  she filed  on  April 29, 1954 the final  decree,  and  commenced

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proceedings for sale of the mortgaged properties. Coming  to  know  of this, the  second  respondent  appeared before  the  Registrar, and raised the  objection  that  the execution  of  the  decree was barred  by  limitation.   The Registrar felt some doubt in the matter, and made a  special report under ch. 26, r. 50 seeking the opinion of the  Court on the question of limitation, and the first respondent  was also directed to take out a notice of motion for directions. The  matter  then came before P. B. Mukharji  J.  and  after hearing 1290 counsel for both the respondents, he held that the execution of  the  decree was not barred.  Vide judgment  reported  in Nirmala Sundari v. Sudhir Kumar (1).  Against this judgment, the second respondent preferred Appeal No. 152 of 1955,  and that is still pending. We  now  come to the application, out of which  the  present appeal arises.  On July 25, 1956 the appellant applied to be brought  on record as appellant in Appeal No. 152  of  1955. The allegations in support of the petition were that she had purchased  the properties from the second respondent on  May 12,  1952  free  of all  encumbrances,  that  the  execution proceedings  started  by  the  first  respondent  were   not maintainable as the decree had become time-barred, that  the second respondent, Sudhir Kumar Mitter, had been  conducting proceedings in opposition to the execution sale only at  her instance  and for her benefit, that he had filed Appeal  No. 152  of  1955  also oil her behalf,  that  latterly  he  had entered   into  a  collusive  arrangement  with  the   first respondent  with  a  view to defeat  her  rights,  and  that therefore  it  was necessary that she should be  allowed  to come  on record as appellant so that she might  protect  her interests.   The  prayer  in the petition was  that  she  be substituted in the place of the second respondent or in  the alternative, be brought on record as additional appellant. The   application  was  strenuously  opposed  by  both   the respondents.   They  stated that they had  entered  into  an arrangement settling the amount due to the first  respondent at  Rs. 17,670, that that settlement was fair and bona  fide and   binding  on  the  appellant,  and  that  further   her application  was  not maintainable.   This  application  was heard by Chakravarti C. J. and Lahiri J. and by their  order dated August 6, 1956, they dismissed it.  The appellant then applied  under Art. 133 for leave to appeal to  this  Court, and in rejecting that application, the learned Chief Justice observed  that  the original application  was  pressed  only under  0. 22, r. 10 of the Civil Procedure Code and  it  was dismissed, as it was conceded that the applicant, (1)  A.I.R. 1955 Cal. 484. 1291 not  being  a  person who had obtained  a  transfer  pending appeal, was not entitled to apply on the terms of that rule, that the prayer in the alternative that the applicant  might be brought on record without being substituted under 0.  22, r.  10 which merited favourable consideration bad  not  been mentioned  at the previous hearing, and that no  certificate could  be granted under Art. 133 with a view to  that  point being  raised in appeal, as the order sought to be  appealed against  was  not a final order.  The  appellant  thereafter obtained  special  leave  to appeal under Art.  136  of  the Constitution, and that is how the appeal comes before us. It  is  contended  OD  behalf  of  the  appellant  that  her application is maintainable under 0. 22, r. 10 of the  Civil Procedure  Code,  because  Suit  No. 158  of  1935  must  be considered to have been pending until the decree therein was

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drawn  up which was in 1954, and the transfer in her  favour had  been made prior thereto on May 12, 1952.  The  decision in  Lakshan  Chunder Dey v. Sm.  Nikunjamani  Dassi  (1)  is relied on, in support of this position.  But it is contended for  the first respondent that even if Suit No. 158 of  1935 is considered as pending when the transfer in favour of  the appellant  was made, that would not affect the result as  no application had been made by her to be brought on record  in the  original  court during the pendency of the  suit.   Nor could  the  application  made  to  the  appellate  Court  be sustained  under 0. 22, r. 10, as the transfer in favour  of the  appellant was made prior to the filing of  that  appeal and not during its pendency.  This contention appears to  be well-founded  ;  but that, however, does  not  conclude  the matter.   In  our  opinion, the  application  filed  by  the appellant  falls within s. 146 of the Civil Procedure  Code, and  she  is  entitled to be brought on  record  under  that section.   Section  146  provides  that  save  as  otherwise provided by the Code, any proceeding which can be taken by a person  may also be taken by any person claiming under  him. It has been held in Sitharamaswami v. Lakshmi Narasimha  (2) that an appeal is a proceeding for the (1) (1923) 27 C.W.N. 755. 164 (2) (1918) I.L.R. 41 Mad. 510. 1292 purpose  of this section, and that further the expression  " claiming   under"  is  wide  enough  to  include  cases   of devolution  and assignment mentioned in 0. 22, r. 10.   This decision   was  quoted  with  approval  by  this  Court   in Jugalkishore  Saraf v. Raw Cotton Co., Ltd. (1), wherein  it was  hold  that a transferee of a debt on which a  suit  was pending  was  entitled  to  execute  the  decree  which  was subsequently  passed  therein,  under s. 146  of  the  Civil Procedure Code as a person claiming under the decree-holder, even  though an application for execution by him  would  not lie under 0. 21, r. 16, and it was further observed that the words "save as otherwise provided " only barred proceedings, which would be obnoxious to some provision of the Code.   It would  follow  from the above authorities  that  whoever  is entitled to be but has not been brought oil record under  0. 22, r. 10 in a pending suit or proceeding would be  entitled to  prefer  an  appeal against the decree  or  order  passed therein  if  his assignor could have filed such  an  appeal, there being no prohibition against it in the Code, and  that accordingly  the  appellant  as an assignee  of  the  second respondent  of  the  mortgaged properties  would  have  been entitled  to prefer an appeal against the judgment of P.  B. Mukharji J. It  is  next  contended  that s.  146  authorises  only  the initiation of any proceeding, and that though it would  have been competent to the appellant to have preferred an  appeal against  the  judoment of P. B. Mukharji J. she  not  having done  so  was  not entitled to be brought on  record  as  an appellant  to  continue the appeal preferred by  the  second respondent.  We are not disposed to construe s. 146 narrowly in  the  manner  contended  for by  counsel  for  the  first respondent.  That section was introduced for the first  time in  the  Civil  Procedure  Code, 1908  with  the  object  of facilitating the exercise of rights by persons in whom  they come  to be vested by devolution or assignment, and being  a beneficent provision should be construed liberally and so as to  advance  justice and not in a  restricted  or  technical sense.  It has been held by a Full Bench of the Madras  High Court in Muthiah Chettiar v. Oovinddoss Krishnadass (2) that

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the assignee of a part of a (1) [1955] i S.C.R. 1369. (2) (1921) I.L.R. 44 Mad. 919. 1293 decree  is  entitled to continue  an  execution  application filed  by  the transferor-decree-holder.  Vide  also  Moidin Kutty  v. Doraiswami (1).  The right to file an appeal  must therefore be held to carry with it the right to continue  an appeal  which  had been filed by the person under  whom  the applicant  claims, and the petition of the appellant  to  be brought on record as an appellant in Appeal No. 152 of  1955 must be held to be main. tainable under s. 146. It remains to consider whether, on the merits, there  should be an order in favour of the appellant.  Of that, we have no doubt  whatsoever.   The proceedings in which she  seeks  to intervene arise in execution of a mortgage decree.  She  has purchased  the  properties comprised in the decree  for  Rs. 60,000   under   a  covenant  that  they   are   free   from encumbrances.  And after her purchase, the first  respondent has  started proceedings for sale of the properties,  nearly 18  years after the decree had been passed.   The  appellant maintains  that  the  execution proceedings  are  barred  by limitation, and desires to be heard on that question.  It is true  that P. B. Mukharji J. has rejected  this  contention, but  a  reading of his judgment shows-and that  is  what  he himself observes-that there are substantial questions of law calling   for  decision.   Even  apart  from  the  plea   of limitation,  there  is  also a question  as  to  the  amount payable in discharge and satisfaction of the decree obtained by  the first respondent in Suit No. 158 of 1935.  Both  the respondents  claim that they have settled it at Rs.  17,670. But  it  is stated for the appellant that under  the  decree which  is sought to be executed the amount  recoverable  for principal  and interest will not exceed Rs. 6,000.   In  the affidavit  of  Sanjit Kumar Ghose dated December  20,  1956, filed  on  behalf of the first respondent,  particulars  are given as to how the sum of Rs. 17,670 was made up.  It  will be  seen  therefrom that a sum of Rs. 7,200 is  claimed  for interest up to March 8, 1956, calculating it not at the rate provided in the final decree but at the contract rate.  Then a sum of Rs. 5,000 is included as for costs incurred by  the mortgagee in suits other than (1)  I.L.R. 1952 Mad. 622. 1294 Suit No. 158 of 1935 and in proceedings connected therewith. The  appellant  contends that the properties  in  her  hands could,  under  no  circumstances, be made  liable  for  this amount.   A sum of Rs. 1,750 is agreed to be paid for  costs in  the  sale  reference, in the proceedings  before  P.  B. Mukharji  J.  and  in  Appeal No. 152  of  1955.   Asks  the appellant,  where is the settlement in this, and how can  it bind  me ? It is obvious that there are several  substantial questions  arising for determination in which the  appellant as  purchaser of the properties is vitally  interested,  and indeed  is  the  only person  interested.   As  a  purchaser pendente lite, she will be bound by the proceedings taken by the first respondent in execution of her decree, and justice requires that she should be given an opportunity to  protect her rights. We accordingly set aside the order of the Court below  dated August  6, 1956 and direct that the appellant be brought  on record  as additional appellant in Appeal No. 152  of  1955. As  Sudhir  Kumar Mitter, the appellant now on  record,  has dropped  the  fight with the first respondent,  we  conceive that  no embarrassment will result in there being on  record

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two  appellants  with  Conflicting interest.   But,  in  any event,  the  Court can, if necessary, take action  suo  motu either under 0. 1, r. 10 or in its inherent jurisdiction and transpose  Sudhir Kumar Mitter as second respondent  in  the appeal,  as was done in In re Mathews. Oates v. Mooney  (1), and  Vanjiappa  Goundan v. Annamalai Chettiar (2 ).  As  for costs,  the appellant should, in terms of the order of  this Court  granting  her  leave to appeal,  pay  the  contesting respondent  her  costs  in this appeal.  The  costs  of  and incidental  to the application in Appeal No. 152 of 1955  in the High Court will abide the result of that appeal.                       Appeal allowed. (1) (1905) 2 Ch. 460.          (2) (1939) 2 M.L.J. 551. 1295