Alauddin vs Biran and Others

Sinha, J.—This is a plaintiff''s second appeal from the concurrent decisions of the Courts below refusing his application for making a fresh final decree in a suit to enforce a simple mortgage bond.

The facts of this case lie within a narrow compass, and are as follows: The appellant-plaintiff instituted a suit for sale on a simple mortgage bond against one Mt. Walian. A preliminary decree for sale was passed on 10th December 1940, against Mt. Walian herself. The period of grace was to expire on 10th June 1941; but, before the expiry of that period, Mt. Walian died on 26th May 1941. The decree-holder made an application for a final decree after substituting certain persons as the heirs of Mt. Walian, and they are defendants third party in these proceedings. The final decree was made on 13th August 1941. In execution of that decree, the mortgaged property was sold and purchased by the plaintiff decree-holder. Delivery of possession was obtained by the auction-purchaser, and then certain persons, who are defendants first and second parties, claiming to be the real heirs of Mt. Walian, started proceedings under Order 21, Rule 100, Civil P.C., claiming that they were in possession of the property as the heirs of Mt. Walian, and, as they had not been substituted in her place, the final decree and the proceedings in execution and delivery of possession following thereupon were not binding upon them. After a contest between the parties, their contention was allowed to prevail, and the property was restored back to them. Thereupon, on 9th June 1948, the decree-holder made an application for vacating the final decree made as aforesaid on 18th August 1941, and for making a fresh final decree as against the defendants first and second parties who had been found by the Court to be the real heirs of Mt. Walian, the mortgagor. This application the Courts below have refused on the ground that the rights of the decree-bolder "in the preliminary decree for sale merged in the final decree prepared by the Court, and that nothing further could be done after what had happened by way of drawing up of the final decree and the execution of that decree ending in sale of the property and delivery of the same. The lower appellate Court has further observed that, after the proceedings under Rule 100 of Order 21, Civil P.C., had terminated in favour of the real heirs of Mt. Walian, defendants first and second parties, the plaintiff should have started a fresh suit u/s 103 of Order 21, Civil P.C. Hence this second appeal by the plaintiff.

It has been contended on behalf of the appellant by Mr. Sanyal that the plaintiff, who had obtained a correct preliminary decree against the mortgagor herself, should not be barred against his real rights of selling the property effectively in pursuance of that decree by a mistaken substitution proceeding taken by the decree-holder on wrong information. He has further pointed out that the application for a fresh final decree was made within three years from the expiry of the period of grace allowed by the preliminary decree, and that there is no question of abatement of the suit by the non-substitution of the real heirs of the deceased judgment-debtor, Mt. Walian. On the other hand, it has been contended on behalf of the respondents, the real heirs of Mt. Walian, that the plaintiff is now without any remedy at law, and that whatever rights he had have been exhausted by the drawing up of the final decree and the execution of that decree resulting in the sale of the property and the delivery of possession in favour of the decree-holder. The contention, in effect, is that the mistake in the substitution of the heirs of Mt. Walian made by the decree, holder, bona fide though it may be, is fatal to any fresh proceedings being taken at his instance, even though the fact remains that the property has not been effectively sold and the possession of the property has come back to them as a result of the proceedings under Order 21, Rule 100, Civil P.C. Such a contention the Court will not allow to be made successfully unless it finds itself helpless in the matter. The case came before me sitting singly, and, as no precedents were placed before me which should cover the present controversy between the parties, I referred the case to a Division Bench for final hearing. It has now come before us, and, after hearing the parties, we reserved judgment in order to consider our reasons for the decision of the case.

It should be noted at the outset that on the day the application for making a fresh final decree was made, that is to say, on 9th June 1943, the right to apply for such a decree had not become barred by limitation, as the period of grace expired on 10th June 1941. In the events which have happened, already noted above, the proceedings taken for substitution in place of the deceased mortgagor have proved, infructuous. As the mortgagor died after the passing of the preliminary decree, no question of abatement of the suit can arise, even on the assumption that the application of 9th June 1943, is also deemed to be an application for making substitution of the real heirs of the deceased judgment-debtor, disregarding the previous substitution proceedings; but it has been argued by Mr. Mojibur Rahman for the respondents that, their application under Rule 100 of Order 21, Civil P.C. having been allowed, the only remedy available to the decree-holder was to institute a suit under Rule 103 of Order 21 of the Code. That contention would have been well-founded if the decree-holder had taken the attitude that the order passed by the Court under Rule 100 of Order 21 of the Code was erroneous. But in the present case the decree-holder has accepted the position as found by the Court in that proceeding, namely, that the defendants first and second parties are the real heirs of the deceased judgment-debtor. Hence, the present application is not to set aside the order passed by the Court under Rule 100 of Order 21 of the Code but in pursuance of that decision. The decree-holder, by applying for having a fresh final decree prepared as against the real heirs of the deceased judgment-debtor, is admitting that the judgment in that proceeding was correct, and that the previous final decree obtained against the defendants 3rd party was a mere surplusage which does not effectively carry out the direction of the Court given in the preliminary decree, namely, that the mortgaged properties be sold in execution of that decree, on being made final. The question, therefore, resolves itself to this: what is the remedy of the decree-holder in view of the circumstances brought out above?

In the case of Kali Charan Nath v. Sukhoda Sundari Debi AIR 1916 Cal. 661, a Division Bench of the Calcutta High Court held that the remedy of the decree-holder was either, (1) to have the decree vacated, the suit restored, the real representatives brought on the record, and a new decree made against them or (2) to institute a suit on the judgment and obtain a decree thereon against those representatives. But their Lordships in that case did not discuss the circumstances in which a fresh suit on a judgment could lie. In that case the defendant in a suit for money had died during the pendency of the suit leaving a will appointing certain persons as his executrices. The plaintiff, not being aware of the will or the provisions of the will, brought the natural heirs on the record in place of the deceased defendant, and got a decree against them. Execution of the decree was opposed by the executrices. It was held by their Lordships that the objectors, not being parties to the decree, were not bound by the same, and that the decree could not be executed against the estate in their hands. It will be noticed that the facts of that case are not on all fours with the present case. In the present case the preliminary decree has rightly been obtained against the mortgagor herself. The final decree has only to work out the rights of the parties in accordance with the preliminary decree. Hence, what was necessary after the death of the mortgagor after the passing of the preliminary decree was to sell her estate in the presence of her legal representatives so that they might have exercised the right of redemption; what has happened is that the real representatives, not having been brought on the record by substitution, had not the opportunity of redeeming the property on payment of the decretal sum. In the circumstances of the present case, therefore, it is not necessary for the decree-holder to institute a fresh suit on the judgment.

Furthermore, it is doubtful if such a suit would lie--see in this connection the judgment of a Division Bench of the Calcutta High Court in the case of Maharaja Sir Rameshwar Singh Bahadur v. Srimati Janeshwari Bahooasin AIR 1914 Cal. 263. In that case, in circumstances though not exactly similar to the present case but on an analogous ground, their Lordships held that a fresh suit on the judgment was not maintainable. It has been settled as long ago as 1878 by the Full Bench of the Calcutta High Court in the case of Assamathem Nessa Bibee v. Roy Lutchmeeput Singh 4 Cal. 142, that, if some of the heirs of the deceased judgment-debtor in a mortgage action were not impleaded on the death of the mortgagor, their interest did not pass as a result of the sale held in execution of a decree obtained against only some of the real representatives of the deceased mortgagor. In the present case the position is worse still, as the real heirs of the judgment-debtor had not been impleaded at all, and altogether wrong persons were substituted on account of the mistake of the decree-holder. Hence, it is clear, on the authority of the Full Bench of this Court in the case of Ajab Lal Dubey and Another Vs. Hari Charan Tewari @ Hari Tewari and Others, that the estate of the mortgagor is not bound by such a sale. The position, therefore, is that, by his mistake, the decree-holder has obtained orders for substitution and a final decree on that basis which is wholly inoperative. The result, therefore, is that the estate of the mortgagor has not been sold, and the preliminary decree passed against the mortgagor herself had not been effectively made into a final decree. Can it be said that the inadvertent mistake of the decree, holder in bringing wrong persons on the record has for ever deprived him of the fruits of his decree? In my opinion, there is no warrant for such a conclusion. The decree drawn up against wrong persons without the real legal representatives being brought on the record is a mere waste paper, and the decree-holder has wasted his time and money over such an infructuous proceeding. As the decree-holder has not been culpably negligent, and, as a matter of fact, has been vigilant enough to institute the proceedings for a final decree within the time allowed by law, he is, in my opinion, entitled to a fresh final decree as against the real representatives of the deceased judgment-debtor.

The Court has inherent jurisdiction to do complete justice between the parties, and is not powerless to pass such orders as may be necessary for the ends of justice. Section 151 of the Code has clearly saved that power of the Court, especially in such cases as the present where the Code is silent as to the remedy available to a party who has been diligent in the pursuit of his litigation but has made a bona fide mistake on a question of fact. I would, therefore, set aside the orders of the Courts below, and allow this appeal. I would further direct that the case be remitted to the Court of first instance for preparing a fresh final decree impleading the real legal representatives of the deceased judgment-debtor. There will be no order as to costs here or in the Courts below, that is to say, each party will bear its own costs throughout, in the very special circumstances of this case.

Ramaswami J.

I agree.