Ramlakhan Pandey vs Tribeni Das and Others

Meredith, J.—The appellant, who is also the applicant in revision, brought a suit for a declaration that a certain property consisting of a four annas share in village Bikua was not liable to be sold in execution of a mortgage decree obtained by defendants 1 and 2 against defendant 3, a Hindu widow. This lady, Mt. Jaimurat Kuer, on 5th March 1907, had purchased this four annas interest in village Bikua by a kebala (Ex. 1). In addition, this lady was also recorded together with her step mother-in-law, Mt. Jugeshwar Kuer, for an eight annas interest in the village.

On 29th April 1928, (it is wrongly given in the judgment of the learned Subordinate Judge as the 28th of April), Jaimurat Kuer together with Jugeshwar Kuer had executed a mortgage of an eight annas share in the village in favoiar of defendant 1. The following day, 1st May 1928, Jaimurat Kuer executed a deed of gift (Ex. 3) in respect of a four annas share expressly described as her purchased four annas share in favour of the plaintiff-appellant, who was her grand-nephew. Both these documents were registered on the same day the 1st of May 1928.

On 28th April 1936, defendant 1 together with defendant 2, to whom he had transferred a one-third interest in the mortgage, obtained a mortgage decree against Mt. Jaimurat Kuer defendant 3, and in execution of this decree attempted to sell the four annas share which purported to have been given to the present appellant under Ex. 3. After an order for sale had been passed, but before any sale had taken place, the present suit was filed.

The learned Subordinate Judge held on the evidence that this four annas interest did not form the subject-matter of the mortgage, and that the mortgage had covered the eight annas ancejtra share separately recorded in the names of Jaimurat Kuer and Jugeshwar Kuer. Before the date of the judgment, however, the sale had actually taken place. The learned Judge therefore observed that no effective decree could be given unless the sale was set aside, and he therefore held that ad valorem court-fees were payable.

On these findings on 20th April 1938, he gave his decision in the following terms: "The suit is decreed on contest against defendants 1 and 2 and ex parte against defendant 3 with costs and pleader''s fee at the lowest scale prescribed by the High Court''s General Rules and Circular Orders, the costs being payable by defendants 1 and 2 alone. The title of the plaintiff to the property in suit is hereby declared. It is further declared that this property is not subject to the mortgage under the bond, dated 28th April 1928, in the name of defendant 1 and that the sale held in execution of the mortgage decree in favour of defendants 1 and 2 is not valid as against the plaintiff. The decree shall be subject to the condition of the plaintiff''s paying the deficit court-fee of Rs. 397-8-0 by 5th May 1938 failing which the suit will stand dismissed with costs to defendants 1 and 2."

On 5th May 1938, the day fixed for payment of the court-fees, the plaintiff filed a petition stating that he was prepared to pay the court-fees but would have to purchase court-fee stamps from the treasury. He was depositing money in the treasury that day, but it was impossible to get court-fee stamps within the Court hours. Therefore he prayed that one day''s time might be granted for payment, of the deficit court-fees. The learned Subordinate Judge, who was not the Judge who had actually tried the suit, allowed one day''s time for filing the court-fee stamp, and on the following day, 6th May the stamp was actually filed. The very same day an application was filed on behalf of defendants 1 and 2, stating that time had been granted without notice to them and under a misapprehension and asking that the stamp should not be accepted, and the suit should be dismissed as directed in the judgment.

The learned Subordinate Judge went into evidence as to whether any payment of the court-fees had actually been made on 5th of May and he found, and his finding has not been challenged, that on 5th of May no money had actually been deposited. He passed orders in the matter on 30th June. He took the view that the plaintiff had misled the Court, time had been given under a misapprehension, actually in view of the judgment of 20th April the Court had no power to extend the time, and the suit therefore stood dismissed with costs to defendants 1 and 2. On 4th July, the decree was signed by the learned Deputy Magistrate Subordinate Judge, bearing dates 20th April and 30th June. The appeal is accordingly against this decree dismissing the suit with costs, and the application in revision has been filed against the order, dated 30th June on the ground that the time having been already extended the subsequent order was without jurisdiction.

It is argued for the appellant that as the application for time was made before the expiry of the date fixed, the Court still had seisin of the case and had ample jurisdiction to extend the time u/s 149, Civil P.C. For the respondents, however, a number of rulings have been cited to the effect that when once a final judgment has been pronounced, under Order 20, Rule 3, the Court is functus officio, and cannot subsequently alter that order or amend it, except with regard to clerical errors, u/s 152, or on review under Order 47, Rule 2, Civil P.C. In the present case there was of course neither any question of clerical error or of review of the order. The application for extention of time was not an application for review duly constituted as such, and it was not an application to the learned Subordinate Judge who had actually tried the case and delivered the judgment. The rulings upon this point which have been cited, are Beni Prasad Vs. Om Prakash and Another, , Sajjadi Begam Vs. Dilawar Husain and Others, and Kandhya Singh Vs. Musammat Kundan, , which all support the contention put forward. The question has also been considered at length by this High Court in Surajmal Marwari and Another Vs. Bhubaneshwar Prasad and Others, where a distinction was drawn between an order which states that if the court fee be not paid by a certain date the suit will be dismissed and an order which states that in the event of the court-fee not being paid by a certain date the suit will stand dismissed, and it is pointed out that the former type of order may be said to be not final, something more being required before the suit is actually dismissed and the Court becomes functus officio. That case was decided on the footing that the order under consideration was of this type, and not absolutely final. The Court therefore had jurisdiction to extend the time, but their Lordships implied that they were in agreement with the rulings to which I have just referred and that time could not be so extended where the order was a final one, as in the case of an order directing that the suit will stand dismissed on the plaintiff''s failure by a certain date.

There can be no question that the order in the present case was a final order, the wording used being "failing which the suit will stand dismissed." In my view, therefore, the learned Subordinate Judge had no jurisdiction to allow further time upon the application of 5th May, and under the order of 20th April the suit actually stood dismissed on the close of 5th May when the court-fee had not been paid.

The order of 30th June, which was simply an acceptance of the application of 6th May by the defendants and an expression of the view of the Court that the suit stood dismissed was therefore a correct order, and cannot be said to have been without jurisdiction. There is therefore no substance in the application in revision.

The matter is different, however, with regard to the appeal. There had been no grave laches on the part of the plaintiff. When the suit was filed, no sale had taken place. The question of court-fee was left for decision by the Court until the final decision of the case. The sum to be paid was a large one, almost Rs. 400, and the time allowed for payment was only one fortnight. In the circumstances a peremptory and final order leading no possibility for any extension of time was perhaps unnecessarily stringent and it would, in my opinion, have been better if time had simply been allowed with a direction that the case be put up on the expiry of that time for final orders. The order is also open to criticism on the ground that it was also an order stating that the suit was decreed. It was hardly correct to pass an order decreeing the suit before the court-fees due on the plaint had been paid. In both respects, it would have been better if the order had not been made final, and while it cannot be said that there was anything illegal about this order, the result of it is that a claim which has been found fit to be decreed on the merits has been dismissed without, as I have said, any grave laches on the part of the plaintiff. The money, if not deposited on the 5th, must almost certainly have been deposited very early on the morning of the 6th, as it was the time of the year when the Courts sit in the early morning. There was therefore not much delay. In my view, this order should not be allowed to stand, and so far as the terms of this order are concerned, the appeal is fit to succeed.

The respondents, however, have attempted to support the decision on the ground that the suit should have been dismissed upon the merits, and that they are entitled to do. We have accordingly heard the matter on the merits.

Now the eight annas interest of the two widows, Jaimurat Kuer and Jugeshwar Kuer, was recorded in 1918 in the record of rights under khewat No. 2. The four annas purchased by Jaimurat Kuer was recorded in khewat No. 1/2. Khewat No. 3 was a shamilat khewat of khewats Nos. 2 and 1/2. In the mortgage the mortgaged property was described as being the eight annas recorded under khewat No. 3, and the question therefore arose whether what was mortgaged was the four annas of khewat No. 1/2 together with four annas of khewat No. 2, or simply eight annas of khewat No. 2. In the mortgage suit the learned Munsif held that what was mortgaged was four annas of khewat No. 1/2 and four annas of khewat No. 2, and he gave a decree accordingly. The appellant, however, was no party in that suit. On the evidence in the present case the learned Subordinate Judge has held that what was mortgaged was the eight annas interest in khewat No. 2, and it was wrongly described in the bond under khewat No. 3. I have not the slightest doubt that his decision is correct. In the first place, if we turn to the plaint in the mortgage suit (Ex. 2) there is a clear statement by the present defendants 1 and 2, the plaintiffs in that suit, that the mortgaged property had been wrongly described in the bond as under khewat No. 3, and that was a mistake for khewat No. 2, and it was in respect of the property recorded under khewat No. 2 that a decree was sought for. It was, therefore, the respondents'' own case that the mortgaged property did not include the four annas share now claimed by the appellant, nor does it appear from the judgment that that was the case of the mortgagor defendant.

It is, therefore, not clear how the learned Munsif came to give a decree expressed as being for the property recorded in khewat No. 3. Another circumstance which has been noticed by the learned Subordinate Judge is that the mortgagee, defendant 1, was actually an attesting witness to the deed of gift in favour of the plaintiff and, as I have already indicated, both the deeds were actually registered on the same day. In the present suit defendant 1 did not come to the box. It is said that he is a person of infirm intelligence, but he did give evidence in the mortgage suit and the learned Munsif who saw him in the box observed that his deposition dearly showed that he was not a lunatic, and the allegation that he was a lunatic, which had been made by the defendants in that suit, was altogether baseless. That is really enough to decide the matter. It was not the respondents'' own case in the mortgage suit that the present appellant''s four annas had been mortgaged. It is said that the deed of gift was not genuine, but there is nothing in the � evidence to support that contention. No motive was put forward for executing a colourable deed of gift, and it was established that after the gift the plaintiff was recorded in register D (vide Ex. 6) and the plaintiff from that date all along paid the Government revenue and cess in his own name [vide, Exs. 4 series).

It is argued that in view of the decision in the mortgage suit the question was res judicata, on the ground that the present appellant though not a party in that suit was represented by his donor, Jaimurat Kuer. This contention is quite obviously incorrect. The plaintiff was in no way represented in that suit, since before Jaimurat Kuer contested it she parted with her interest in that particular property and could no longer represent the owner of it. Section 11, Civil P.C., has no application. It is true that the plaintiff has acquired title from Jaimurat Kuer, but in the present case he is not litigating under the same title as was in question in the mortgage suit. There is no question of any res judicata in the present case, and on the merits the decision of the learned Subordinate Judge must be held to be correct.

In the result, therefore, I would allow the appeal and set aside the decision of the learned Subordinate Judge dismissing the suit, and since his view of the merits of the case has been found to be correct the suit must now be decreed. A difficulty that stood in the plaintiff''s way was that while the appeal was pending in the High Court possession of the property was actually delivered to defendants 1 and 2 as auction purchasers. Clearly, therefore, there could be no effective decree without a prayer for recovery of possession in addition to setting aside the sale. In the circumstances the appellant has filed an application to be allowed to amend his plaint so as to include a prayer for recovery of possession after setting aside the sale. As ad valorem court-fees have been paid and there is no question of any possible prejudice, I consider it just that this application should be allowed. In allowing the amendment of the plaint and the appeal I would, therefore, order that the suit be decreed with costs on contest against defendants 1 and 2 and ex parte against defendant 3, with pleader''s fee as directed in the order of the learned Subordinate Judge. The title of the plaintiff to the property in suit will be declared, and it will be declared that the property is not subject to the mortgage under the bond, dated 29th April 1928, in the name of defendant 1, and that the sale held in execution be set aside and the plaintiff do recover possession. I would direct that both parties meet their own costs in the appeal.

As the appeal has succeeded, the application in revision is permitted to be withdrawn.

Chatterji, J.

I agree.