Kunja Behari Misra and Others vs Bendudhar Panda and Another

Chatterji, J.—This is a second appeal against a final decree in a mortgage suit. The appeal is by defendants 2 to 7 who were impleaded in the suit after the preliminary decree and before the passing of the final decree.

The suit was brought on 16th November 1935 to enforce a simple mortgage executed by defendant 1 in respect of two properties of which lot No. 2 was a share in a zamindari. Previous to the institution of, the suit, that is on 20th September 1935, the zamindari comprising lot No. 2 had been sold for arrears of revenue. The surplus sale proceeds representing the mortgagor''s share amounted to Rupees 692-13-0. Out of this Rs. 562 was sought to be attached by defendants 2 to 7 in execution of their money decree against the mortgagor. On 10th January 1936 the Collector attached Rs. 502-14-7 for defendants 2 to 7 and Rs. 189-14-5 for the plaintiff. On 13th January 1936 a preliminary decree for salewas passed against the mortgagor who was the only defendant at the time. On 10th February 193ft defendants 2 to 7 withdrew Rs. 502-14-7 and on. 11th June 1936 the plaintiff withdrew Rs. 189-14-5. from the Collectorate. On 22nd April 1937 the plaintiff applied for making the decree final, praying that defendants 2 to 7 be added as parties so that a decree might be passed against them for refund of the amount withdrawn by them.

The application was opposed by defendants 2 and 3, but the learned Munsif, overruling their objections, added defendants 2 to 7 as parties and passed a final decree as prayed for. Against this decree defendants 2 to 7 filed an appeal in the District Court which was heard and dismissed by the learned Additional Subordinate Judge. Hence this second appeal by defendants 2 to 7.

The first contention raised by Mr. P. Mohanti on-behalf of the appellants is that having regard to the terms of the preliminary decree, the plaintiff was not entitled to implead defendants 2 to 7 at the stage of the final decree, and ask for a decree against them. In the plaint of the mortgage suit there was the usual prayer for sale of the mortgaged properties. Lot No. 2 had already been sold for arrears of revenue and was therefore no longer available to the mortgagee. However, by mistake or otherwise, lot No. 2 was not excluded from the prayer for sale in the plaint. The preliminary decree was passed in terms of the prayer in the plaint and therefore directed that the mortgaged properties would be sold. No doubt a final decree should be made in accordance with the preliminary decree, but where there is an obvious mistake in the preliminary decree, the Court is not bound to repeat that mistake, while passing the final decree. Particularly, in the case of a final decree for sale the Court must not direct the sale of any mortgaged property which is no longer liable to be sold under the mortgage. Lot No. 2 having already been sold for arreas of revenue free from the mortgage, there will be no sense in passing a final decree directing the sale of that property. If the property had been sold for arrears of revenue subsequent to the preliminary decree, it could not be reasonably said that the Court in passing the final decree should follow the exact terms of the preliminary decree. There can be no difference in principle simply because in the present case lot No. 2 had been sold for arrears of revenue before the institution of the suit.

It is next contended that it was open to the plaintiff to implead defendants 2 to 7 before the passing of the preliminary decree and ask for a decree against them, but not having done so, he cannot now implead them and ask for a final decree against them. The answer to this is that defendants 2 to 7 withdrew the amount subsequent to the passing of the preliminary decree. It is true that the amount was attached by the Collector before the passing of the preliminary decree, but attachment by itself does not confer any right on the attaching decree-holder. Besides, the attachment cannot prevail against the claim of the mortgagee to the surplus sale proceeds (Section 73, T.P. Act). The plaintiff therefore was under no necessity to implead defendants 2 to 7 before they actually withdrew the money.

The question then arises whether defendants 2 to 7 can be impleaded at this stage and the final decree passed against them. u/s 73, T.P. Act, the plaintiff is unquestionably entitled to the surplus sale proceeds. If lot No. 2, instead of being sold for arrears of revenue, had been purchased by defendants 2 to 7 subsequent to the preliminary decree, they would have purchased it lis pendens and would have been bound by the preliminary decree. If in that case they were sought to be impleaded at the stage of the final decree, they could not possibly raise any objection. Now lot No. 2, having been sold for arrears of revenue, was converted into money over which the plaintiff would have the same lien which he had over the property. Defendants 2 to 7 have taken away that money. The plaintiff has a right to follow the money in their hands. Enforcing this right is enforcing the mortgagee''s right. All questions regarding the mortgagee''s right to enforce his mortgage should be determined in the mortgage suit itself. If therefore the plaintiff in order to reap the benefit of his preliminary decree asks the Court to implead defendants 2 to 7 in this mortgage suit and pass the final decree in their presence and against them as well, there is no reason why his prayer should be refused. To drive him to a separate suit will simply involve multiplicity of suits. Order 1, Rule 10, Civil P.C., gives complete power to the Court to add any necessary party at any stage of the proceedings. That parties may be added in a suit under Order 1, Rule 10, Civil P.C., even after a preliminary decree has been held in several cases: Daw Aye Mya v. U Kwe Nyo AIR 1935 Rang. 23 , Krishna Aiyar Vs. Subrahmania Aiyar and Another, and Jotindra Mohan Togore v. Bijay Chand Mahatab 32 Cal. 483.

It may be said that a final decree in a suit for sale must be passed in accordance with the provisions of Order 34, Rule 5, Sub-rule (3) which runs as follows:

Where payment in accordance with Sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in Sub-rule (1) of Rule 4.

This sub-rule thus provides for the payment of the sale prooeeds in the manner indicated in Sub-rule (1) of Rule 4. In other words, the sale proceeds shall be paid to the plaintiff. But where the mortgaged property has already been sold in satisfaction of a prior claim and the surplus sale proceeds are lawfully payable to the plaintiff, there is no reason why the Court should refuse to pass a final decree declaring the right of the plaintiff to recover the surplus sale proceeds. If Order 34, Rule 5, Sub-rule (3) is not wide enough to cover such case the Court may act in exercise of its inherent powers u/s 151, Civil P.C.

The last point taken by Mr. Mohanti is that defendants 2 to 7 having been impleaded more than 12 years after the accrual of the right to sue on the mortgage, the suit must be held to be barred by limitation against them. In support of this contention he relies on Jogeshur Bhagat v. Ghanasham Das (''01) 5 C.W.N. 356. In that case the mortgaged property having been sold for arrears of revenue and the surplus sale proceeds having been taken out by some decree-holders of the mortgagor in execution of their money decrees, the mortgagee subsequently brought a suit against these decree-holders for recovery of the surplus sale proceeds withdrawn by them. The suit was brought more than six years after the withdrawal of the surplus sale proceeds by the defendants, but within 12 years from the date when the mortgage money became payable under the terms of the mortgage. The defendants raised the objection that the suit was barred under the six years'' rule prescribed by Article 120, Schedule 1, Limitation Act. This objection was overruled. The High Court held that the suit was one to enforce payment of money charged upon immovable property and was therefore governed by Article 132, Schedule 1, Limitation Act. This decision has no application to the present case, because here the sale proceeds were withdrawn by defendants 2 to 7 after the preliminary decree, that is to say, during the pendency of the suit. If they had withdrawn the money before the institution of the suit, the position might have been different and the case cited might perhaps have been applicable. Limitation bars a suit where the right to sue had already accrued before the suit. But where a suit has already been brought in time and the right to sue some other persons accrues during the pendency of the suit, the question is one of impleading parties who are affected by the doctrine of his pendens. Limitation, if at all applicable to such a case, will be governed by Article 181, Schedule 1, Limitation Act, which prescribes that the period of limitation for "applications for which no period of limitation is provided elsewhere in this schedule or by Section 48, Civil P.C., 1908" is three years from "when the right to apply accrues." On the facts of the present Case the question of limitation does not arise. The appeal is dismissed, but in the circumstances, without costs. Leave to appeal under the Letters Patent is granted.

I notice that in the final decree that has been drawn up though it is mentioned that lot No. 2 has been sold for arrears of revenue, yet it is stated that:

It is hereby ordered and decreed that the mortgaged property in the aforesaid preliminary decree mentioned or a sufficient part thereof be sold.

This is an obvious mistake. The decree should be amended by adding "lot No. 1 of" before "the mortgaged property" in the above passage.