A.I. R. (32) 1945 Patna 123

 

A.I. R. (32) 1945 Patna 123

FAZL ALI C. J.

Gobind Mahto and others- Petitioners

V.

Chandra Bhan Prasad Singh and another-Opposite Party.

Civil Reva. No. 725 of 1943, Decided on 15th September 1944, from order of Munsif, Barh, D- 30th November 1943.

(a)    Bengal Tenancy Act (8 of 1885), S. 121- S. 121 applies to bhaoli rent. Section 121 does apply to land held on bhaoli rent: 4

(b)    29 A.1.R. 1942 Pat. 193, Foll.([P 193 C 1) (b) Bengal Tenancy Act (8 of 1885), Ss. 121 and 40-Distraint proceedings-Ex parte tenant-li S, 121 is abused, remedy is provided by S. 140.

Proceedings for distraint should not be regarded as suits; they are not judicial in the sense that the Court proceeds in the absence of the tenants and the landlord comes and gives his evidence ex parte and upon that all that the Court is required to do is to marry the distraint out. If the landlord abuses 8. 121, the remedy is expressly provided by 8. 140: (35) 22 A. I. R. 1936 Pat. 154, Foll. (P 123 C1)

(c) Bengal Tenancy Act (8 of 1885), S. 121- Single application (Qware).

Whether one single application should be entertained for distraint in respect of the produce of a number of different holdings

Dan Sinha and Ramanugrah Narain Sinha - for Petitioners.

Jagdish Singh - for Opposite Party.

Order:--  The petitioners are occupancy tenants of khatas Nos. 69, 111, 138, 122, 192, and 1211 and they pay bhaoli rent for these lands. They have filed this civil revision application against an order passed by a Munsif for the distraint of the paddy crops on these lands under s. 121, Ben. Ten. Act, upon n application made by the landlord claiming arrears of rent for 1350 Pasli at the rate of early Rs. 75 per bigha. After the order of deistraint a petition was filed by the tenants, but the learned Munsif though impressed by the fact that the rent claimed was rather high, alt that he was unable to alter his order. The petitioners have therefore preferred this application against his order. In the first place it is contended on behalf of the petitioners that the section does not apply to land held on bhaoli rent. But a similar contention was overruled in A.I.R. 1942 Pat. 193. Their second contention is that the order of distraint has been made in violation of proviso 2 to the section which is to the following effect:

"An application shall not be made under this section for the recovery of any sum in excess of rent payable for the holding in the preceding agricultural year unless that sum is payable under a written contract or in consequence of a proceeding under this Act or an enactment hereby repealed."

It is stated in the petition that for the Inst 10 years the landlords have not realised rent for the lands of the petitioners at more than Rs. 12 per bigha and that this fact is supported by a number of rent receipts and rent decrees. This contention seems to have greatly impressed the Munsif and it may not be altogether without substance; but as was pointed out by the learned advocate for the opposite party the actual cash amount paid by the tenant in the preceding years is not a decisive factor in this case inasmuch the holdings are held on batai rent. The actual cash amount recoverable in each year will depend upon the prevailing prices and all that has to be seen s whether the landlord is claiming more than his due share of the rent. It is urged on behalf of the opposite party that the landlord claimed 9/20th share of the crops in the preceding year and the same share was claimed in the year 1350. However that may be, in my opinion it is difficult to interfere with the Order of the Munsif in view of the decision of Division Bench of this Court in A. I.R. 1935 Pat. 154. It was held in that case that proceedings for distraint should not be regarded as suits, that they are not judicial in the sense that the Court proceeds in the absence of the tenants and the landlord comes and gives his evidence ex parte and upon that all That the Court is required to do is to carry The distraint out. It was also pointed out that the landlord abuses S. 121, the remedy is expressly provided by s. 140.

It is further contended on behalf of the petitioners that one single application should not have been entertained for distraint in respect of the produce of a number of different holdings. This view is supported by the decision of the Calcutta High Court in 28 cal. 4 but this matter also cannot be investigated by this Court in view of the decision to which I have referred. Besides, this point does not appear to have been included in the objection before the Munsif and I am unable to deal with it on its merits. The application is accordingly dismissed. There will be no order for costs.

Application dismissed.

R.K.

 

Shri Ramanugrah Narain Singh as a member of The Bihar and Orissa Research Society

 

Shri Ramanugrah Narain Singh

as a member of

The Bihar and Orissa Research Society



 

NOTES OF THE QUARTER.

I.-Proceedings of a Meeting of the Council of the

Bihar and Orissa Re search Society

held on the 25th January 1919 at 3 p.m.

at the Society's Office.

 

PRESENT:

The Hon'ble Mr. E. H. C. Walsh, C&I, ICS.

The Hon'ble Mr. C. E. A. W. Oldham, C&I, ICS

The Hon'ble Mr. J. G. Jennings, CIE

Professor J. N. Samadiar, B.A., PRES, FRS, Honorary Treasurer,

1. Letter from Mr. Jayaswal, Honorary Secretary, was read, regretting that he is unable to attend the meeting.

2. The proceedings of the last meeting were read and confirmed.

3. The following new members were elected:

(1) Pandit Kachi Nath Das, Professor, Ravenshaw College, Cuttack,

(2) Kumar Hari Krishna Dev, MA., Sobha Bar, Calcutta.

(3) Professor H. R. Bhateja, MA.., Patna College.

(4) Professor Jagannath Prasad Pandey, Patna College.

(5) Rai Bahadur Barols Kant Ganguly, Deputy Magistrate, Patna.

(6) Babu Saparva Das Gupta, Central Jain Library, Arrah.

(7) N. Chatterji, Esq., 41, Chowringhee, Calcutta.

(8) Rai Yatindra Nath Choudhari., MABL, Kuthighata Road, Baranagore, Calcutta.

(9) Babu Ramanugrah Narayan Singh, MABL,. Munaif,vBuxar

(10) Profesor Radhagovinda Basak,MA, 46-1 R Road, North, Bhawanipur, Calcutta.

(11) Professor A. P. Shastri, MA. Great Bhumihar Brabas College, Mujaffarpur

(12) Pan Lal, Esq, ICI, Dehra Dan.

(13) Babu Rajendra Prsaad, MABL, Vakil, Patna High Court,

(14) Pandit Ambika Prasad Upadhyaya, MABL, Vakil, High Court, Patna.

4. The appointment of an additional peon for the office was considered. It was resolved that an additional peon on Rs.8 a month be appointed. The other peon will then be available for the Honorary Secretary’s work.

It was also resolved that the Honorary Secretary be asked to report whether in view of the appointment of the extra peon, it is necessary to retain the post of Duftri, or whether it would be better to get book binding done locally and the extra peon would do the Duftri's routine work.

6. The appointment of a peon on Rs. 8 a month for the Honorary Treasurer in place of the present allowance of Rs. 4 granted to him for the purpose was considered. It was resolved that a peon on Rs. 5 a month be appointed.

6. It was resolved at the number of copies of the Journal be relaxed from 730 to 550.

7. The following letters were read and recorded

(1) Governed letter No. 1877, dated the 2nd November 1918, making an extra grant of Rs. 400 for cataloguing Sanskrit manuscript in the Bihar districts.

(2) Government letter No., dated the 17th November 1918, making a grant of Rs. 1,000 for the purchase of books for the Society's Library and

(3) Government letter No. 1997E, dated the 7th November 1918, conveying mention  to Rai Bahadur Sarat Chandra Roy, MA., BL, Anthropological Secretary, to attend the meetings of the Indian Science Congress at Bombay.

PATNA HIGH COURT Appeal No, 159 and Civil Revision No. 241 of 1938 October 3, 1940

 

PATNA HIGH COURT

Appeal No, 159 and Civil Revision No. 241

of 1938

October 3, 1940

HARRIBS, C. J. AND MANOHAR LALL, J. TIKA SAO AND OTHERS-APPELLANTS

versus

HARI LAL AND OTHERS-RESPONDENTS

Mortgage Subrogation-Earlier bonds, if can be enforced against property not covered by bond in favour of person claiming right-Estoppel-No estoppel on question of law Civil Procedure Code (Act V of 1908), O. V r. 17, s. 34-Amendment of plaint enlarging subject-matter of claim against properties over which plaintiffs had right of subrogation, if justified-Interest pendente lite-Nine per cent per annum held fair-Bihar Money-lenders Act (III of 1938), 7-Relief granted to enforce earlier bonds 8.1, if applies to claim on those bonds.

The right of subrogation, gives full right to enforce the previous mortgage bonds which have been redeemed and kept alive and therefore the persons claiming such rights have full right to enforce the earlier bonds even against property not covered by the bond in suit. [p. 429, col. 1.1

A representation on a question of law does not amount to an estoppel. (p. 429, col. 2.]

In many cases where the plaint is allowed to be amended the subject-matter of the claim is necessarily enlarged and the defendant can hardly be heard to say that it is unjust that the plaint should be allowed to be amended simply because it will result in his having to pay the just dues of the plaintiff. Consequently an amendment of the plaint whereby the subject-matter of the claim has been enlarged by including the right to enforce the mortgage bond in suit against the properties which the plaintiffs were entitled in law to enforce by the right of subrogation which they possessed and to which they had expressly referred in their written statement in the earlier suit is justified. (p. 430, tol. 2.)

Where the plaintiffs are being granted a relief to enforce the earlier bonds also, and the Court passes a decree to enforce three earlier bonds as a part of the relief given to the plaintiffs to enforce their mortgage bond a. 7, Money-lenders Act is applicable to the claims on the old bonds. (p. 431, col. 2)

The fair rate at which interest pendente lite should be awarded to the plaintiffs is 9 per cent. per annum simple from the date of the suit. (p. 431, col. 1.)

A. and C. R. from original decree and order of the Sub-Judge, Patna, dated December 22, 1937, and April 14, 1938, respectively.

Messrs. B. P. Sinha Brahmadeo Narain and Girijanandan Prasad, for the Appellants (in No. 159). 

 

Mr. S. M. Mallick, Chaudhury Mathura Prasad, Messrs. Sarjoo Prasad, Ramanugrah Narain Sinha Brajakishore Prasad Sinha B. P. Mahasetti and P. Jha, for the Respondents (in No. 159)

Chaudhury Mathura Prasad, for the Petitioner, (in No. 241),

Messrs. B. P. Sinha

Girijanandan Prasad and Tarkeshwar Nath, for the Opposite Party (in No. 241).

Manohar Lall, J.-This appeal came before this Bench on November 28, 1939. when by an order of reference dated December 5, 1939 two questions were referred to the Full Bench for decision Tika Sao v. Hari Lal (AIR 1940 Pat 385; 189 Ind. CAS. 513; 19 Pat 759;91 PT. T 453 6 BR 813-13 RP 88 CF B), namely whether a subsequent mortgagee who pays up and redeems the earlier mortgages as part of the covenant in his mortgage is entitled to claim subrogation so as to entitle him to enforce the rights of the earlier mortgagees as a plaintiff in an action and secondly whether the pro- visions of s. 92 of the amended T. P. Act, 1882, are retrospective. The Full Bench have now unanimously decided the first question in the affirmative and by a majority the second question also in the affirmative. The hearing of the appeal was accordingly resumed by this Bench on September 4, 1940. It is unnecessary to set out once again the various mortgage bonds which have to be considered in deciding the matter now in controversy. Reference may -be made conveniently to the order of reference where all the mortgage bonds have been sufficiently set out. It is enough to state that the present suit is a suit, by the plaintiffs to enforce the mortgage bond dated April 25, 1927 by which the four earlier mortgage bonds, two of the year 1924 and the other two of the year 1925 (hereinafter referred to as the earlier bonds) executed by the mortgagors who are defendants. Nos. 1 and 2 in the action were paid off as part of the covenant. The mortgage bond in suit was executed in favour of the plaintiffs and in favour of defendants Nos. 3 to 6. The appellants who are defendants Nos. 8, 10, 11, 16 and 17 are mortgagees subsequent to the earlier bonds redeemed as aforesaid and also held a mortgage subsequent to the mortgage bond in suit giving rise to a number of complications which will be indicated hereafter.

It having been decided by the Full Bench that the provisions of s. 92 are retrospective the appellants contended in the first place that upon a true construction of the mortgage bond in suit no lien was sought to be given on the properties other, than those expressly stated in the mortgage bond in suit, and therefore the plaintiffs can- not take any advantage from the doctrines of subrogation beyond this that they will have priority only on those properties which are common to the mortgage bond in suit and the earlier bonds. The appellant relied upon the words of the bond in suit printed at p. 18 (Part III) that as security for the amount of loan on the bond of April 25, 1927 the mortgagors have hypothecated the shares in the villages specified therein "by keeping alive the effect of the previous mortgage lien covered by the bonds Nos. 1 to 4 aforesaid which have been satisfied from this amount of debt, taken back and made over to the said creditors." The words in the vernacular corresponding to "by" keeping alive" are "babahal mokaddam," that is, "and on keeping alive." It seems to me that the contention of the appellants is not well founded when they argue that these words should be interpreted to mean. that the parties intended that the previous security should be split up by giving a peculiar right of subrogation to the plaintiffs The right of subrogation, as has been decided by the Full Bench, gives full right to enforce the previous mortgage bonds which have been redeemed and kept alive and therefore the plaintiffs, in my opinion have full right to enforce the earlier bonds even against property not covered by the bond. in suit. But the learned Advocate for the appellant argued that this is the very interpretation which was placed by the plaintiffs at some stages of the litigation; even if this is so this will not have the effect of giving a different construction to the plain words of the mortgage bond. (After discussing evidence as to estoppel, his Lordship proceeded.) Have the appellants been induced by any act, omission or conduct of the plain- tiffs to make the payment on February 2, 1937 by the chalan Ex. F (1)? It is clear from what I have stated above that the appellants were determined to make that payment before the present suit was instituted and before either of the two statements in para. 14 of the plaint and in para. 6 of the written statement were filed.

The appellants having failed in the Court of the learned Subordinate Judge actually filed an appeal to this Court on a date anterior to the-dates of both these statements. It is true that the plaintiffs appear to have been under a misapprehension as to their legal rights and interpreted the words already quoted from the bond in suit in such a way as to think that they could only enforce their lien against the properties other than village Marsua, but they no- where expressly stated that they were giving up in terms their right to enforce their lien over village Marsua. The appellants had equal knowledge of the rights of the plain- tiffs which were founded upon the clear and unambiguous recitals in the mortgage bond in suit which I have already interpreted to mean to cover village Marsua so far as the previous encumbrances thereon were re- deemed and kept alive. It is well established that a representation on a question of law does not amount to an estoppel. The rule of estoppel is laid down by s. 115, Evi. Act, which enacts that:

"When one person has, by his declaration, not or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed.....to deny the truth of that thing."

In this case I have already shown that the plaintiffs had not by any declaration, act or omission intentionally caused the appellants to believe it to be true and to act upon such belief that village Marsua was free from the encumbrances which the plaintiffs can enforce. The appellants acted upon their own knowledge and belief and their interpretation of the bond in suit. Attention was however, drawn to, the evidence of one of the appellants who was examined as their second witness. He is Gopi Lal, defendant No. 10 in the action. He says that under orders of the Hon'ble High Court he deposited Rs 4,869-10-8 in February 1937 towards the dues of the mortgage bonds, namely, of July 5, 1926 and July 12, 1926, in which village Marsua had been mortgag ed. He goes on to state that in title suit No. 30 of 1936 the plaintiffs filed a written statement but did not claim priority therein in respect of village Marsua and that in the present suit also the plaintiff gives up his claim in respect of village Marsua and there- fore he states that he believed that the plaintiff give up his claim for village Marsua but had he claimed it he would not have redeemed the bond of July 5, 1926 and of July 12, 1926.

The learned Subordinate Judge did not believe this witness on the ground that the defendants had already applied for re- deeming village Marsua as early as August 12, 1935. But the learned Advocate for the appellants argued that even if the appellants had already applied for the redemption of village Marsua it should be held that they  would not have made the actual payment on February 2, 1937 were it not that the plaintiffs had in the meantime stated distinctly in writing in their plaint and in their written statement that they would not claim any lien on village Marsua. However, the witness was cross-examined and at line 30 stated that before depositing the amount he looked into the mortgage bond in suit and then stated that he did not look into the bond in suit. Towards the end of his cross- examination he also stated that he had not gone through the four bonds in question before making the deposit. It seems to me that it is impossible for this Court to take any view different from that of the learned Subordinate Judge who had the advantages of hearing and seeing the witness in the witness box. I am satisfied that the only conclusion which can be arrived at from a consideration of all the circumstances at tending the payment of February 2, 1937 is that the appellants did not make the payment being induced to do so by them statements made by the plaintiffs in the pre- sent suit or in the written statement of November 1936. In fact in the written statement of November 1936 the attention of the appellants was clearly drawn to the four bonds of 1924 and 1925 and that the plaintiffs were claiming the right of subrogation in respect thereof.

I now consider the question whether the learned Subordinate Judge ought to have allowed the plaint to be amended by his order dated December 9, 1937 so as to en- able the plaintiff to claim the right to make liable the share in village Marsua for the three bonds of 1924 and 1925. Order No. 67 dated December 9, 1937 shows that the plaintiffs submitted that by the redemption of the bonds of 1924 and 1925 the plaintiffs by operation of law have been subrogated to the rights of the mortgagees of these bonds in respect of the properties mentioned therein. and therefore they have a right to make the amendment in their plaint. The appellants resisted the amendment on the ground that as the plaintiffs did not include Marsua in the plaint they are estopped from doing so.at this stage because the defendants under a belief that the plaintiffs were not going to enforce their right of subrogation in respect of Marsua have redeemed the bonds dated July 5, 1926 and July 12, 1926 on payment of about Rs. 5,000 under the orders of the Hon'ble High Court and that they would not have done so if Marsua had originally been included in the plaint schedule. It will be noticed that it is nowhere stated in this  objection that the appellants relied upon the written statement filed by the plaintiffs in November 1936, but founded their belief only on the schedule to the plaint in this suit. The learned Subordinate Judge overruled the objection holding that as the right accrued to the plaintiffs by operation of law he did not see any reason why the plaintiffs could. not claim the right of subrogation in respect of the properties which were included in the bonds of 1924 and 1925, but were left out. in the plaint and that the defendants when they were redeeming the bonds of July 1926 could easily have seen that the plaintiffs could in law include village Marsua in the plaint schedule at any moment as they had acquired the right of subrogation in respect thereto and that they took the risk in believing that the plaintiffs would be estopped from claiming the right of subrogation. It seems to me that the circumstances amply justified the learned Subordinate Judge in allowing the plaint to be amend ed. Order VI, r. 17, Civil P. C. states that the

"Court may at any stage of the proceedings allow both party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in. controversy between the parties."

But the learned Advocate for the appellants argued that it was unjust to allow the plain- tiffs to change the subject-matter of the claim by allowing this amendment. I do not see any injustice on the facts of this case. The subject-matter of the claim has no doubt been enlarged but only by including the right to enforce the mortgage bond in suit against the properties which the plaintiffs were entitled in law to enforce by the right of subrogation, which they undoubtedly possessed and to which they had expressly referred in their written statement in the earlier suit. In many cases where the plaint is allowed to be amended the subject matter of the claim is necessarily enlarged and the defendant can hardly be heard to say that it is unjust that the plaint should be allowed to be amended simply because it will result in his having to pay the just dues of the plaintiff. If however the claim as amended was barred by limitation and the defendants have not been given sufficient opportunity to meet the case of the plaintiffs the matter would be different. It is not pre- tended that the claim of the plaintiff is barred by limitation.

Have then the defendants any grievance that they have not been given sufficient opportunity to meet this new case set up by the plaintiffs? The order of December 8, 1937 is complete answer to this contention. It was submitted by the appellants to the learned Subordinate Judge that in the event of the amendment being allowed they should be allowed to the additional written statement. The Court however held that regard being had to the pleadings and issues already in the record the filing of additional written statement was not necessary but he allowed the learned Advocate for the appellants to suggest any additional issue if he liked consequent on this amendment. Accordingly on December 10, 1937, the learned Advocate for the appellant suggested the additional issue "Are the plaintiffs estopped from claiming priority in respect of Marsua?" That issue was accordingly added. The learned Advocate then requested that for filing other documents the suit should be adjourned for three days. This was allowed and then the defendants opened their case and began with their evidence. It seems to me that the appellants have no grievance. They only asked for three days' time and that time was given and the trial proceeded from the stage at which the plain- tiffs had closed their case and had amended their plaint before the appellants began their defence. For these reasons I am of opinion that the appellants have no grievances and the suit has been rightly decreed.

The appellants claimed relief under the Bihar Money-lenders (Regulation of Trans. actions). Act, 1939. It is not denied by the respondents that the amount for which the 1 suit should be decreed is for Rs. 13,000 principal, being the amount advanced under the band in suit and for another sum of Rs. 13,000 being the total interest and claim able from the date of the bond up to the date of suits, November 30, 1935. The plaintiffs are also entitled to interest pendente lite on the sum of Rs. 13,000. In the mortgage bond in suit the stipulation is to pay interest at Re. 1-2.0 per cont. per mensem compound, able every six months. The interest provided in the bond of May 26, 1924 in Re 1-1-0 per cant. Per mensem and the same, rate is in the bonds of August 1924, April 1925 and October 1925. But in the thica patia of May 20, 1926 (Ex. G. (1)] the interest provided in only 10 annas per cent. Per mensem wish annual reats; and in the two later bonds of July 1926 the rate of interest is again at Re. 14-0 per cent. Per mensem with similar rests. In these circumstances I think that the fair rate at which interest pendente lite should be awarded to the plaintiffs is 9 per cent. per annum simple from the date of the suit till two months from today which we fix as the period of grace and thereafter as the rate of 6 per cent. per annum till realization.

The appellants argued further that out of the amount which is being decreed on the bound in suits the burden which is thrown on three of the earlier bonds should also be regulated by the provisions of the Money-lenders Act, s. 7. (The first bond of May 26, 1924 is being, omitted from consideration because the plaintiffs do not seek to enforce that mortgage bond by virtue of the doctrine. of subrogation as village Marsua is not included as a security therein.) The learned Advocate for the respondents resisted this. Contention. He argued that these earlier bonds are not bunds in suit. But, in my opinion, the argument of the appellant is well founded. The plaintiffs are being granted a relief to enforce the earlier bonds also, and in fact we are passing a decree to enforce these earlier bonda as a part of the relief given to the plaintiffs to enforce the bond in suit. Section 7, Money-lenders Act, therefore, is equally applicable to the claims on these three bonds. The result is that out of the amount due under the bond in suit, the bond [Ex. 1 (a) will be enforceable to the extent of Rs. 2,000 up to the date of the suit and there- after carry interest at 9 per cent. on Ra, 1,000 principal up to the period of grace, there- after at the rate of 6 percent., Similarly the amount due under the bond [Ex. 1(b), dated April 30, 1925, will also be conforceable to the extent of Ra. 2,000 plus interest to be calculated in a similar manner. And lastly the dues on the bond (Ex. 1 (e)), dated October 23, 1925, will be limited to a sum of Rs. 2,400 together with interest thereafter at the rate of 9 per cent on Rs. 1,200 till the expiry of the period of grace and thereafter at 8 per cent till the date of realization. The appellants are also in their turn entitled to claim priority to the extent of the amount which they deposited in Court under the orders of the High Court in February 1937 to redeem the bonds F-1 of July 5, 1927 and F-1 (a) of July 12, 1926. The principle of the Bihar Money-lenders Act cannot apply to the claims on these two bonds because these transactions have already ripened into a degree. Similarly the appellants are entitled to priority with respect to the amount decreed in suit No. 30 of 1936 being a suit Instituted on their bond of October 3, 1920. Finally the appellants are entitled to priority with respect to the amount due on the bond [Ex. A (1) of August 3, 1926. The provisions of the Bihar Money-lenders Act will apply to this trans- action as the dues on this bond have not yet ripened into a decree. So that the appellants will be entitled to claim priority to, the extent of Rs. 3,000, that is to say Rs. 1,500 principal and Rs. 1,500 interest together with interest at the rate of 9 per cent. per annum from the date of the present suit till expiry of the period of grace and thereafter at 6 per cent. The dues of defendants Nos. 3 to 6 on their bond of November 4, 1927 have already ripened into a decree in suits Nos. 90 and 20 of 1933 and that decree cannot be re-opened.

Having determined the amounts due on the various mortgage bonds as aforesaid, it is necessary to give directions as to how the decree should be prepared in this case because it is distinctly provided in 0. XXXII, 1.4 (4), Civil P. Ca that when a sale is ordered by a preliminary decree in a mortgage suit in which subsequent mortgagees or persons deriving title from, or subrogated to the rights of, any such mortgagees are joined as parties, the preliminary decree shall pro- vide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in form No. 9, form No. 10 or form No. 11 as the case may be, of Appx. D with such variations as the circumstances of the case may require. The learned Subordinate Judge by his order No. 85 dated April 14, 1938 direct- ed. the decree to be prepared in a proper form. I have examined that decree and I am of opinion that the decree is correctly prepared as required by law. The office will therefore adopt that decree but will vary

the amounts to be inserted in it and make such other alterations therein as may be necessary in accordance with the directions given in the course of his judgment regarding the dues on the various mortgage bonds. The result is that the appeal succeeds in part but in the circumstances I would allow the plaintiffs only proportionate costs throughout.

Civil Revision No. 241 of 1938. This application is directed against order No. 85 dated April 14, 1938 passed by the learned Subordinate Judge in amending the decree which he had already passed on December 22, 1937, and which is the subject of appeal No. 159 of 1938 which has been disposed of by the judgment just delivered. In this application the decree-holder seeks to vacate the decree as amended on the ground that this Court below had no jurisdiction to alter the decree already passed by him. It is un necessary to consider this contention because this revision has become infructuous in the circumstances. As the decree originally passed has been varied by this Court a new decree has to be passed which will govern the rights of the parties. Accordingly, this application is dismissed but without costs.

Harries, C. J.     I agree.

Order accordingly..

Shri Ramanugarh Narayan Sinha and Full Bench of Patna High Court 1940

 

A.I. R. 1940 Patna 346

FULL BENCH

HARRIES C. J., WORT AND

MANOHAR LALL JJ.

 

Ramphal Sahu and others-

                                                     Defendants-Appellants.

V.

Babu Satdeo Jha and another -

                                                  Plaintiffs-Respondents.

 

Appeal No. 232 of 1936, Decided on 15th April 1940, from original decree of Sub- Judge, Muzaffarpur, D/. 30-9-1936.

Civil P. C. (1908). O. 22. R. 3 and O. 41, R. 4-Appeal by all plaintiffs or defendants from decree proceeding on ground common to all-One of them dying-No substitution made within time-Appellate Court cannot reverse or vary decree in favour of all appellants : 19 Pat 172 = AIR 1940 Pat 341=185 I C 685 Overruled.

By reason of the provisions of Rr. 3 and 11, of O. 22 the appeal in so far as it concerns the deceased appellant abates and as the abatement, if not set aside has the force of a decree, the matter become final as against the deceased appellant. Ther is nothing in O.41 and R.4 which permits the Court that finality of the decree as against the deceased appellant. The words "and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be" in O. 41, R. 4 suggest that all the plaintiffs or defendants are alive at the time when the decree of the Appellate Court is passed. The wording is not appropriate to a case where one of the plaintiffs or defendant-appellants has died during the pendency of the appeal. Hence, the Appellate Court has no power to proceed with the hearing of an appeal and to reverse or vary the decree in favour of all the plaintiffs or defendants under O. 41, R. 4, if all the plaintiffs or defendant appeal from the decree and one of them dies and no substitution is effected within time and the application for setting aside the abatement, so far as the deceased appellant is concerned, has been refused assuming that the decree appealed from proceeded on a ground common to all the plaintiffs or defendants: Case law reviewed: 19 Pat 172 AIR 1940 Pat 341-185 IC 685, Overruled. [P 346 0 2; P 347 C 2; P 348 C 1; P 351 01; P 352 C 1)

P. R. Das, Balaram Kumar Sinha and Prem Lall - for Appellants.

P. C. Manuk, Rati Kant Chaudhuri, Ramanugrah Narayan Sinha. Hareshwar Prasad Sinha and P. Jha- for Respondents.

OPINION

Harries C. J.-This is a reference to a Full Bench in which the following question has been submitted:

Has the Appellate Court power to proceed with the hearing of an appeal and to reverse or vary the decree in favour of all the plaintiffs or defendants under O.41, R. 4, Civil P. O., if all the plaintiffs or defendants appeal from the decree and опе of them dies and no substitution is effected within time and an application for setting aside the abatement, so far as the deceased appellant is concerned, has been refused, always assuming that the decree appealed from proceeded on a ground common to all the plaintiffs or defendants ?

On 7th July 1924, plaintiff 1 executed a mortgage bond for Rs. 1500 carrying interest at the rate of two per cent. per mensem with six monthly rests in favour of one Pandit Kapileshwar Missir, a pleader practising in the Courts at Laheria Sarai. On 16th October 1924, he executed another mortgage for Rs. 2000 with interest at two per cent. Per mensem with quarterly rests in favour of the same mortgagee. On 14th May 1925, he executed a third mortgage for Rs. 2500, with interest at Ro. 1.8.0 per cent. With annual rests in favour of the same mortgagee, and on 26th May 1926 he executed a fourth mortgage in favour of the same person for Rs.7000 with interest at one percent, per mensem with six monthly rests. In all these mortgages the property mortgaged was at eight annas share in mauza Nobahi. In order to redeem these bonds. Plaintiff 1 sold five annas out of the eight annas share in village Nebahi already mortgaged to the four defendants on 30^th.June 1929for a sum of Rs.27,737. He left with the purchaser a sum of Rupees 4658.12.6 to redeem the first bond, Rs. 369 for the second bond, Rs. 3033-10-0 for the third and Rs. 12,592-2-0 for the fourth bond. The four defendants redeemed the first two bonds and not the third and fourth. It transpired that plaintiff 1 has not left sufficient money to redeem the third bond, as the parties were apparently under a mistaken belief that this bond was for Rs. 1500, whereas in fact it was for Rs. 2500. On 20th November 1933 plaintiff 1 sold a further one anna share of his eight-anna interest in mauza Nebahi to the four defendants for Rs. 2500, and it is conceded that the four defendants had after this sale sufficient funds to discharge the third and fourth mortgages. They however failed to do so, and eventually this suit was instituted praying that the liability of the four defendants be assessed at Rupees 33,070.4-2 1/2 and further that it might be ordered by the Court that within a period to be fixed the defendants should pay to Pandit Kapileshwar Missir or should deposit in his name in Court the said sum of Rs. 33,070-4-2 1/2 and cause the mortgage bonds to be filed in Court. In case of failure to pay the said debt in the manner indicated above, a money decree was prayed for the said sum.

The learned Subordinate Judge passed a decree in favour of the plaintiffs against all four defendants Ramphal Sahu, Ramkhelawan Sahu, Ramnarain Sahu and Bhola Sahu. Against this decree the four defendants appealed to this Court. During the pendency of the appeal, Ramnarain Sabu died, and no steps were taken within the prescribed period to bring the names of his heir or personal representatives on to the record. Later an application was made to set aside the abatement: but this application was rejected by a Bench of this Court. The remaining three defendants thereupon prosecuted the appeal. On the appeal coming on for hearing before a Bench of this Court, counsel for the respondents took a preliminary objection that the appeal was incompetent and that by reason of the failure to bring on to the record the names of the personal representatives of Ram narain Sabu the whole appeal had abated. On behalf of the appellant, it was contended inter alia that the three appellants could continue the proceedings by reason of the provisions of O. 41, R. 4, and Civil P. C. The Bench which heard the case was of opinion that the point involved was one of difficulty and importance and referred the matter to the Chief Justice for the constitution of a Full Bench. The question has therefore been heard by the present Bench. O. 41, R. 4,Civil P. C, are in these terms:

Where there are more plaintiffs or more defendant than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the care may be.

It is conceded by both parties that the decree in this case against the four defendants proceeded on the ground common to all. It was contended on behalf of the appellants that this rule applied not only to a case where one or more of a number of defendants had appealed but also to a se where all the defendants had appealed and one of them had died during the pendency of the appeal. It was argued that there was no difference whatsoever in principle between the case of some only of the defendants appealing and the case where all had originally appealed and one had died during the pendency of the appeal and no steps had been taken to bring the names of the heirs or personal representatives of the deceased appellant on to the record.

The wording of O. 41, R. 4. Civil P. C.. suggests that the rule was intended to apply to cases where all the plaintiffs or defendants were alive and that only one or more such plaintiffs or defendant had appealed from the decree. The rule lays down that in such a case the Court may reverse or vary the decree in favour of all the plaintiffs or defendants in the suit as the case may be, provided that the decree appealed from proceeded on any ground common to the plaintiffs or defendants. The words “and thereupon the Appellate Court may reverse or vary the decree in favour of all plaintiffs or defendants, as the case may suggest that all the plaintiffs or defendants are alive at the time when the decree the Appellate Court is passed. The word. of the rule does not appear to me to be appropriate to a case where one of the plaintiffs or defendant-appellants has died during the pendency of the appeal. A plaintiff or defendant-appellant who has died during the pendency of the appeal can no or be regarded as a plaintiff or defendant in the suit, and the rule does not state in terms that the decree may be reversed varied in favour of all the plaintiffs or defendants or their personal representatives or representatives-in-interest. The reversal variation can only be made in favour of the plaintiffs or defendants and that suggests that it cannot be made in favour of the personal representatives of a deceased plaintiff or defendant. O, 29, Rr. 3 and 4, Civil P. C., deal with cases of plaintiffs and defendants dying during the pendency of a suit, and O. 22, R. 11 makes the provisions of O. 22, R. 3 applicable to cases of appellants dying during the pendency of an appeal. O, 22, R. 3 reads as follows:

(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representatives of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub-r. (1), the suit shall abate so far as the deceased plaintiff is concerned, and on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.

As I have stated, this rule has been made applicable to appeals and therefore where one of the appellants dies and the right to prosecute the appeal does not survive to the surviving appellant or appellants alone, the Court on an application made in that behalf shall cause the legal representatives. of the deceased appellant to be made a party and shall proceed with the appeal. But where within the time limited by law no application is made to bring the names of the representatives of the deceased appellant on to the record the appeal shall abate so far as the deceased appellant is concerned. In the present ease, the right to appeal did not survive to the surviving appellants alone. The representatives of the deceased appellant could undoubtedly have joined in the prosecution of the appeal.

This rule is therefore applicable to the present case and the appeal abated in so far as the deceased appellant was concerned. The decree which had been passed against him became final as the Court on application made to it refused to set aside the abatement. It is to be observed that O. 22, R. 3 is silent as to the ultimate fate of the appeal. All it states is that the appeal abates in so far as the deceased appellant is concerned. It has however been laid down by all the Courts in India that the appeal will in these circumstances abate as a whole if the case is of such a nature that the appeal cannot proceed in the absence of the legal representatives of the deceased appellant. This Bench however is only concerned with the question whether the remaining appellants can successfully prosecute this appeal by reason of O. 41, R. 4, and Civil P. C. If that rule applies, it seems clear that the appeal will not abate as a whole. However, even if O. 41, R. 4. Civil P. C., does not permit the appellants to continue to prosecute the appeal it does not follow that the appeal abates as a whole. The present reference is only concerned with the question whether O. 41, R. 4, Civil P. C., allows the remaining appellants to prosecute the appeal and not with the question whether on other grounds the appeal can or cannot proceed. O. 22, Civil P. C., provides a complete code to deal with the questions which arise by reason of the death of one of the parties to an appeal. That being so, it has been contended on behalf of the respondents that the rights of the parties in the present case must be governed solely by O. 22, R. 3, Civil P. C. That Rule makes it clear that the appeal in so far as the deceased appellant is concerned has abated. According to the respondents, if the remaining appellants are allowed to prosecute the appeal conflicting or contradictory decrees may result and therefore the whole appeal must be regarded as having abated. As I have stated, whether the whole appeal has or has not abated in such circumstances is not a matter for this Bench.

On behalf of the appellants, it is urged that even if the appeal in so far as it concerns the deceased appellant has abated, the surviving appellants can prosecute the appeal and the Court may, under O. 41, R. 4, Civil P. C., reverse or vary the whole decree, that is reverse or vary it in favour not only of the surviving appellants but also in favour of the legal representatives of the deceased appellant. In short, it is contended that in this case the Court has power to reverse the decree of the Court below and dismiss the whole suit not only against the surviving defendant-appellants but also against the legal representatives of the deceased defendant-appellant against whom the decree has already become final by reason of the refusal of the Bench to set aside the abatement.

The appellants' contention is supported by considerable authority. The earliest case is 22 Bom 718.(Chandarang v. Khimabhal,(1898)22 Bom 718.) In that case one of several defendant-appellants died after appeal filed but before the hearing. An application to have the name of his heir entered on the R. 20, Civil P. O., added the omitted defendants as parties and dealt with the appeal. It was held that the order of the District Judge was without jurisdiction inasmuch as the appeal being against some only of the joint claimants, it was incompetent and the effect of the order was to give power to the appellants to present the appeal although it was time-barred at the time the particular order was passed. Das J. at p. 758 observed:

As was pointed out in Manindra Chandra Nands v. Bhagwati Debi Chaudhuranio it, that is to say O. 41, R. 20, 'is not intended to override the provisions of O. 22, Civil P. C. The right obtained by a respondent when the appeal abates as against him is a valuable right and should not be lightly treated. The right of those respondents who were not made parties to the appeals is valuable right, because they were not made parties to the appeals and the appeals against them would be barred by limitation at the date when they were added.

The cases to which I have referred are the principal cases dealing with the respective contentions of the parties in this case. In my judgment, the latter cases to which I have referred express the correct view. O. 29, Rr. 3 and 11, Civil P. C., deal with cases in which one of a number of appellants has died. By reason of the provisions of those Rules, the appeal in so far as it concerns the deceased appellant abates and as the abatement, if not set aside, has the force of a decree, the matter becomes final as against the deceased appellant. In my judgment, there is nothing in O. 41, R. 4. Civil P. C, which permits the Court to disturb that finality of the decree as against the deceased appellant. To bold that O. 41, R. 4, Civil P. C, applies to a case such as the present one is to hold that a Court can reverse or vary a decree in favour not only of a person who is not before the Court but in favour of a person who is no longer in existence. It appears to me that before a Court can vary a decree in favour of the representatives of the deceased appellant such representatives must be brought on to the record. The Court could, of course, do so if a rule expressly empowered it, but in my judgment O. 41, R. 4, Civil P. C. does not give such a power. As I have stated earlier, that rule is framed on the assumption that all the plaintiffs or defendants in the suit are alive at the date of the passing of the appellate decree, O. 41, R. 4, Civil P. C., cannot override or create an exception to O. 23, Rr. 3 and 11, and in the case of one or more appellants dying even where a decree proceeds on a ground common to all, the matter must be governed solely by the provisions of those latter rules. To hold otherwise is to hold that O. 41, R. 4, Civil P. C., gives the Court power to set aside abatement and to reverse or vary a decree which has become final against the deceased appellant. Whether is such circumstance the appeal has or has not abated as a whole will depend upon considerations other than the provisions of Order 41, Rule 3.

It was also contended by Mr. P. R. Das who argued the case for the appellants with his usual ability that this Court could not now take a different view from that which had been taken by many High Courts in the past. Some of the earlier cases which are in favour of Mr. Das's contention were decided on S. 544, Civil P. C. of 1882. This Section was re-enacted in O. 41, R. 4 of the Code of 1909. Mr. Das contended that it must be assumed that the Legislature when re-enacting the Code of 1908 well knew the construction which had been placed on S. 544 of the old Code and that by re-enacting that Section in precisely similar terms the Legislature expressly recognized the meaning which had been placed on the old Section. Accordingly, he argues that O. 41, R. 4 must now be given the meaning which had been attributed to the words of S. 544 of the old Code. In support of this contention Mr. Dan relied upon 4 Cal 179 (Emp. Bural, (1879) 4 Cal 173-5 14 178 Bar 8343 Suther 5063 CLRIST(PC )and (1891) A C 531."( Commiers for Spedal Purpose of the Income-tax v. J. F. Femal, (1891) & C 681- 61 LJ QB 265-65 L76155 3 805.)  At p. 590 of the latter case Lord Macnaghten observed:

I cannot help reminding your Lordships, in conclusion, that the Income tax Act is not a statute which was passed once for all. It has expired, and been revived, and re-enacted over and over again: every revival and re-enactment is a new Act. It is impossible to suppose that on every occasion the in which the tax was being administered by a department of the State under the guidance of their legal advisers, especially when the practice was fully laid before the Parliament in the correspondence to which I have referred.

It seems to me that an argument in favour of the respondent might have been founded on this view of the case. The point of course is not that a continuous practice following legislation interprets the mind of the Legislature, but that when you find legislation following continuous practice and repeating the very words on which that practice was founded, it may perhaps fairly be inferred that the Legislature in enacting the statute intended those words to be understood in their received meaning. And perhaps it might be argued that the inference grows stronger with each successive re-enactment.

In my judgment the principle enunciated Lord Macnaghton can have no application to this case. During the period under consideration the Code of Civil Procedure as only re-enacted on one occasion and previous to 1908 there had boon a very few decisions on S. 544 of the old Code. The Legislature may or may not have been aware of the interpretation given to the words of that Section by the Bombay and Allahabad High Courts; but, even if they were aware of that interpretation, it in no way follows that they adopted such interpretation when they re-enacted the Section O. 41, R. 4. In my judgment the rule laid down in 4 Cal 172 and (1891) A C 3121 has no application to the present case before the Court. For the reasons which I have given, I am satisfied that the appellants in the present case are not entitled by reason of O. 41, R. 4. Civil P. C., to prosecute the appeal and to obtain a reversal or variation of the decree in favour of all the plaintiffs and defendants. If they are entitled to prosecute the appeal and to obtain such reversal or variation, it is by reason of matters other than those contained in O. 41, R. 4, and Civil P. C. I would therefore answer the question submitted to be Full Bench in the negative. I would direct that the costs of this reference abide the event.

Wort J.-I agree.

Manohar Lall J.- I agree entirely with the reasons given by my Lord the Chief Justice and would answer the question in the negative.

D.S./R.K.                                                Answered in negative.