Rudra Nath Tewari and Others vs Bhujanga Prasad Singh

Jwala Prasad, J.—The petitioners are mortgagors. The mortgagee was in possession of the property in lieu of interest and obtained a decree for rent against one Eklal Singh and in execution of that decree purchased the holding of Eklal Singh on 24th October 1918, and obtained delivery of possession in December 1920.

On 12th August 1922, Eklal Singh''s son, the opposite party in the present case, applied for setting aside the sale under Order 21, Rule 90, Civil P.C. During the pendency of the proceeding on 22nd December 1922, the petitioners paid off the mortgage and redeemed the property. On 25th February 1923, the Munsiff disallowed the judgment debtor''s application under Order 21, Rule 90 of the Code, and the matter was taken in appeal to the District Judge. The 25th May 1923 was fixed for the hearing of the appeal. On 20th March 1923, a petition of compromise was filed in the appeal on behalf of both the parties. By this compromise the judgment-debtor paid off all the dues under the decree with costs and the decree-holder agreed to the sale being set aside. The application was ordered to be taken up on 25th May 1923, the date fixed in the appeal. On that day the petitioners applied to be impleaded as respondents in the appeal. On 10th September 1923, the lower Court disposed of the compromise petition as well as the application of the petitioners. The appeal was directed to be disposed of in terms of the compromise petition, and the application of the petitioners for being impleaded as respondents was rejected.

The petitioners have come to us in revision, and it is contended on their behalf that the Court below ought, to have allowed the petitioners to be made parties to the appeal. The ground urged in support of this application is that the petitioners are the proprietors and after redeeming the usufructuary mortgage they came in direct possession of the property with all the accessions thereto. The raiyati interest in the lands in question having been purchased by the mortgagee was an accession to the property to which the petitioners were entitled. The mortgagee-decree-holder ceased to have any interest either in the mortgaged property or in the raiyati interest in the holding in question and consequently he had no right to enter into a compromise with the jndgment-debtor agreeing to have the sale set aside. In support of the application reliance has been placed upon Section 146 and Order 22, Rule 10, Civil P.C. Section 146 has no application, inasmuch as the petitioners do not claim under the decree-holder. Their title is paramount to that of the mortgagee-decree-holder and they derive no title from the mortgagee. Section 146 of the Code is restricted in its application to an application made by or against any person claiming under another. Order 22, Rule 10 is no doubt of wider application and the phrase "devolution of any interest" in that is not confined in its meaning to devolution by death and would include the devolution of interest on account of succession of anybody who previously had that interest.

In Sourindra Mohan Tagore v. Siromoni Debi [1901] 28 Cal. 171 and N.G. Macleod v. Kissan Vithal Singh [1906] 30 Bom. 250, it was held that whore during the pendency of a suit instituted by the manager of an encumbered estate the estate is released from management and restored to the owners, it is open to persons alleging themselves to be owners of the estate, to apply to be made plaintiffs in place of the manager under Order 22, Rule 10. Therefore the mortgagee being a party to a suit or proceeding having ceased to have any interest, the mortgagor in whose favour the property is released may come under 0. 22, E. 10 of the Code and be made a party to the proceeding in place of the mortgagee.

The question then is : Did the mortgagee in the present case cease to have any interest in the property or in the litigation and did such an interest devolve upon the mortgagors, the petitioners? The decree in question was obtained by the mortgagee for the rent duo to him during the currency of the mortgage. The property was purchased at auction in execution of his decree. The application to set aside the sale was made by the judgment-debtor, and the only person interested in the proceeding was the decree-holder auction-purchaser. In this view the mortgagors had no interest either in the decree or in the raiyati interest purchased by the mortgagee. Therefore no interest devolved upon him and he was consequently not a necessary or proper person to be impleaded as a party in the litigation. The question raised by him as to accession and merger cannot be determined in a miscellaneous proceeding instituted under Order 21, Rule 90, Civil P.C.

It would also seem that the applicants did not come in proper time. The redemption is said to have taken place when the proceeding was pending before the Munsiff, and no application was made by them until after the compromise petition was filed. The appeal before the District Judge was about to terminate. The applicants were, therefore, too late to come to Court even if they had any right to do so.

Therefore, I agree with the view taken by the Court below and dismiss this application with costs : two gold mohurs.