Appeal No350 of 1957
Appeal by special leave from the judgment and order dated August 6 1956 of the Calcutta High Court on a notice of motion in Appeal No 152 of 1955
N C Chatterjee and P K Mukherjee for the appellant
B Sen and P K Ghosh for P K Bose for respondent No 1 1958
February 14
The Judgment of the Court was delivered by VENICATARAMA AIYAR J
This is an appeal against an order of the High Court of Calcutta dated August 6 1956 rejecting the application of the appellant to be brought on record as appellant in appeal No 152 of 1955 pending before it
The second respondent Sudhir Kumar Mitter was the owner of two houses No 861 Cornwallis Street and No 7 C Kirti Mitter Lane Calcutta
On May 19 1934 he executed a mortgage for Rs 3000 over the said houses in favour of the first respondent Sm
Nirmala Sundari Dassi
She instituted Suit No 158 of 1935 on this mortgage and obtained a pre liminary decree on March 8 1935
The matter then came before the Registrar for taking of accounts and by his report dated July 23 1935 he found that a sum 1289 of Rs 3914 6 6 was due to her and on that a final decree was passed on April 20 1936
Under r 27 of ch
16 of the Original Side Rules of the Calcutta High Court a person in whose favour a decree is passed has to apply for drawing up of the decree within four days from the date thereof
The rule then provides that  if such application for drawing up a decree or order is not made within the time aforesaid the decree or ordershall not be drawn up except under order of Court or a Judge to be obtained unless otherwise ordered by a petition ex parte 
The importance of this provision is that until a decree is drawn up as mentioned therein no certified copy thereof would be issued to the party and without such a certified copy no execution proceedings could be taken
The first respondent who had acted with such alacrity and speed in putting her mortgage in suit and obtaining a decree took no steps whatsoever to have the decree drawn up for nearly 18 years
On May 12 1952 the second respondent sold both the houses to the appellant herein for a sum of Rs 60000 which was it is stated utilised largely for discharging prior mortgages on which decrees had been obtained and execution proceedings taken
The deed of sale recites that the properties were sold free of all encumbrances
The first respondent who had so far taken no steps to have the decree drawn up now bestirred herself and on February 17 1954 obtained an ex parte order under r 27 aforesaid granting her leave to draw up and complete the decree
That having been done pursuant to the order she filed on April 29 1954 the final decree and commenced proceedings for sale of the mortgaged properties
Coming to know of this the second respondent appeared before the Registrar and raised the objection that the execution of the decree was barred by limitation
The Registrar felt some doubt in the matter and made a special report under ch 26 r 50 seeking the opinion of the Court on the question of limitation and the first respondent was also directed to take out a notice of motion for directions
The matter then came before P B Mukharji J and after hearing 1290 counsel for both the respondents he held that the execution of the decree was not barred
Vide judgment reported in Nirmala Sundari vs Sudhir Kumar 1
Against this judgment the second respondent preferred Appeal No 152 of 1955 and that is still pending
We now come to the application out of which the present appeal arises
On July 25 1956 the appellant applied to be brought on record as appellant in Appeal No 152 of 1955
The allegations in support of the petition were that she had purchased the properties from the second respondent on May 12 1952 free of all encumbrances that the execution proceedings started by the first respondent were not maintainable as the decree had become time barred that the second respondent Sudhir Kumar Mitter had been conducting proceedings in opposition to the execution sale only at her instance and for her benefit that he had filed Appeal No 152 of 1955 also oil her behalf that latterly he had entered into a collusive arrangement with the first respondent with a view to defeat her rights and that therefore it was necessary that she should be allowed to come on record as appellant so that she might protect her interests
The prayer in the petition was that she be substituted in the place of the second respondent or in the alternative be brought on record as additional appellant
The application was strenuously opposed by both the respondents
They stated that they had entered into an arrangement settling the amount due to the first respondent at Rs 17670 that that settlement was fair and bona fide and binding on the appellant and that further her application was not maintainable
This application was heard by Chakravarti C J and Lahiri J and by their order dated August 6 1956 they dismissed it
The appellant then applied under article 133 for leave to appeal to this Court and in rejecting that application the learned Chief Justice observed that the original application was pressed only under 0 22 r 10 of the Civil Procedure Code and it was dismissed as it was conceded that the applicant 1 AIR 1955 Cal 484 1291 not being a person who had obtained a transfer pending appeal was not entitled to apply on the terms of that rule that the prayer in the alternative that the applicant might be brought on record without being substituted under 0 22 r 10 which merited favourable consideration bad not been mentioned at the previous hearing and that no certificate could be granted under article 133 with a view to that point being raised in appeal as the order sought to be appealed against was not a final order
The appellant thereafter obtained special leave to appeal under article 136 of the Constitution and that is how the appeal comes before us
It is contended OD behalf of the appellant that her application is maintainable under 0 22 r 10 of the Civil Procedure Code because Suit No 158 of 1935 must be considered to have been pending until the decree therein was drawn up which was in 1954 and the transfer in her favour had been made prior thereto on May 12 1952
The decision in Lakshan Chunder Dey vs Sm
Nikunjamani Dassi 1 is relied on in support of this position
But it is contended for the first respondent that even if Suit No 158 of 1935 is considered as pending when the transfer in favour of the appellant was made that would not affect the result as no application had been made by her to be brought on record in the original court during the pendency of the suit
Nor could the application made to the appellate Court be sustained under 0 22 r 10 as the transfer in favour of the appellant was made prior to the filing of that appeal and not during its pendency
This contention appears to be well founded  but that however does not conclude the matter
In our opinion the application filed by the appellant falls within section 146 of the Civil Procedure Code and she is entitled to be brought on record under that section
Section 146 provides that save as otherwise provided by the Code any proceeding which can be taken by a person may also be taken by any person claiming under him
It has been held in Sitharamaswami vs Lakshmi Narasimha 2 that an appeal is a proceeding for the 1 164 2 Mad 510
1292 purpose of this section and that further the expression  claiming under is wide enough to include cases of devolution and assignment mentioned in 0 22 r 10
This decision was quoted with approval by this Court in Jugalkishore Saraf vs Raw Cotton Co Ltd 1 wherein it was hold that a transferee of a debt on which a suit was pending was entitled to execute the decree which was subsequently passed therein under section 146 of the Civil Procedure Code as a person claiming under the decree holder even though an application for execution by him would not lie under 0 21 r 16 and it was further observed that the words save as otherwise provided  only barred proceedings which would be obnoxious to some provision of the Code
It would follow from the above authorities that whoever is entitled to be but has not been brought oil record under 0 22 r 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal there being no prohibition against it in the Code and that accordingly the appellant as an assignee of the second respondent of the mortgaged properties would have been entitled to prefer an appeal against the judgment of P B Mukharji J
It is next contended that section 146 authorises only the initiation of any proceeding and that though it would have been competent to the appellant to have preferred an appeal against the judoment of P B Mukharji J she not having done so was not entitled to be brought on record as an appellant to continue the appeal preferred by the second respondent
We are not disposed to construe section 146 narrowly in the manner contended for by counsel for the first respondent
That section was introduced for the first time in the Civil Procedure Code 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense
It has been held by a Full Bench of the Madras High Court in Muthiah Chettiar vs Oovinddoss Krishnadass 2 that the assignee of a part of a 1 1955 i SCR 1369
2 Mad
1293 decree is entitled to continue an execution application filed by the transferor decree holder
Vide also Moidin Kutty vs Doraiswami 1
The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims and the petition of the appellant to be brought on record as an appellant in Appeal No 152 of 1955 must be held to be main
tainable under section 146
It remains to consider whether on the merits there should be an order in favour of the appellant
Of that we have no doubt whatsoever
The proceedings in which she seeks to intervene arise in execution of a mortgage decree
She has purchased the properties comprised in the decree for Rs 60000 under a covenant that they are free from encumbrances
And after her purchase the first respondent has started proceedings for sale of the properties nearly 18 years after the decree had been passed
The appellant maintains that the execution proceedings are barred by limitation and desires to be heard on that question
It is true that P B Mukharji J has rejected this contention but a reading of his judgment shows and that is what he himself observes that there are substantial questions of law calling for decision
Even apart from the plea of limitation there is also a question as to the amount payable in discharge and satisfaction of the decree obtained by the first respondent in Suit No 158 of 1935
Both the respondents claim that they have settled it at Rs 17670
But it is stated for the appellant that under the decree which is sought to be executed the amount recoverable for principal and interest will not exceed Rs 6000
In the affidavit of Sanjit Kumar Ghose dated December 20 1956 filed on behalf of the first respondent particulars are given as to how the sum of Rs 17670 was made up
It will be seen therefrom that a sum of Rs 7200 is claimed for interest up to March 8 1956 calculating it not at the rate provided in the final decree but at the contract rate
Then a sum of Rs 5000 is included as for costs incurred by the mortgagee in suits other than 1 ILR 1294 Suit No 158 of 1935 and in proceedings connected therewith
The appellant contends that the properties in her hands could under no circumstances be made liable for this amount
A sum of Rs 1750 is agreed to be paid for costs in the sale reference in the proceedings before P B Mukharji J and in Appeal No 152 of 1955
Asks the appellant where is the settlement in this and how can it bind me  It is obvious that there are several substantial questions arising for determination in which the appellant as purchaser of the properties is vitally interested and indeed is the only person interested
As a purchaser pendente lite she will be bound by the proceedings taken by the first respondent in execution of her decree and justice requires that she should be given an opportunity to protect her rights
We accordingly set aside the order of the Court below dated August 6 1956 and direct that the appellant be brought on record as additional appellant in Appeal No 152 of 1955
As Sudhir Kumar Mitter the appellant now on record has dropped the fight with the first respondent we conceive that no embarrassment will result in there being on record two appellants with Conflicting interest
But in any event the Court can if necessary take action suo motu either under 0 1 r 10 or in its inherent jurisdiction and transpose Sudhir Kumar Mitter as second respondent in the appeal as was done in In re Mathews
Oates vs Mooney 1 and Vanjiappa Goundan vs Annamalai Chettiar 2 
As for costs the appellant should in terms of the order of this Court granting her leave to appeal pay the contesting respondent her costs in this appeal
The costs of and incidental to the application in Appeal No 152 of 1955 in the High Court will abide the result of that appeal
Appeal allowed


Summary:
In the writ petition filed before this Court regarding alleged handcuffing of a practising advocate contrary to law while he was being taken to the court after he had been arrested on the charge of a criminal offence it was alleged that the Union Government and the Delhi Administration had not issued necessary instructions to the police authorities with regard to the circumstances in which an accused arrested in a criminal case could be handcuffed or fettered in accordance with the judgment of this Court in Prem Kumar Shukla vs Delhi Administration The question whether this Court can issue a writ for bringing into force section 30 of the  providing the right to every advocate whose name was entered in the State roll to practice throughout the territories to which the Act extended before the Courts Tribunals and other authorities or persons referred to in the Scction in view of section 31 of the Act empowering Central Government to decide the dates on which various provisions of the Act including section 3 should be brought into force also came up for consideration
On behalf of the respondents it was submitted that it was for the Union of India to issue necessary instructions regarding handcuffing of an accused to all the State Governments and the Governments of Union Territories in accordance with the judgment in PK Shukla s case and that this Court had jurisdiction to issue a writ directing the Central Government to consider the question of bringing into force section 30 of the 
PG NO 223 PG NO 224 Disposing of the writ petition HELD 11 It is not open to this Court to issue a writ in the nature of mandamus to the Central Government to bring a statute or a statutory provision into force when according to the said statute the date on which it should be brought into force is left to the discretion of the Central Government
229D A K Roy etc
vs Union of India and Another   followed
However this Court is of the view that this cannot come in the way of this Court issuing a writ in the nature of mandamus to the Central Government to consider whether the time for bringing section 30 of the into force has arrived or not
229E 12 Every discretionary power vested in the Executive should be exercised in a just reasonable and fair way
That is the essence of the rule of law
229F In the instant case the Act was passed in 1961 and nearly 27 years have elapsed since it received the assent of the President of India
In several conferences and meetings of lawyers resolutions have been passed in the past requesting the Central Government to bring into force section 30 of the Act
It is not clear whether Central Government has applied its mind at all to the question whether section 30 of the Act should be brought into force
229F G Even today there are laws in force in the country which impose restrictions on the fight of an advocate to appear before certain courts tribunals and authorities
ln many of the cases which come up before the Courts or Tribunals before which advocates cannot appear as of right questions of law affecting the rights of individuals arise for consideration and they need the assistance of advocates
We have travelled a long distance from the days when it was considered that the appearance of a lawyer on one side would adversely affect the interests of the parties on the other side
The legal Aid and Advice Boards which are functioning in different States can now be approached by people belonging to weaker sections such as Scheduled Castes Scheduled Tribes women labourers etc
for legal assistance and for providing the services of competent lawyers to PG NO 225 appear on their behalf before the Courts and Tribunals in which they have cases
In these circumstances prima facie there is no justification for not bringing into force section 30 of the Act
227D G H 228A B 13 Even though the power under section 30 of the is discretionary this Court is of view that the Central Government should be called upon to consider within a reasonable time the question whether it should exercise the discretion one way or the other having regard to the fact that more than a quarter of century has elapsed from the date on which the Act received the assent of the President of India
230A A writ in the nature of mandamus will issue to the Central Government to consider within a period of six months whether section 30 of the Act should be brought into force or not
The Union of India is directed to frame rules or guidelines as regards the circumstances in which handcuffing of the accused should be resorted to in conformity with the judgment of this Court in Prem Shankar Shukla vs Delhi Administration and to circulate them amongst all the State Governments and the Government of Union Territories within three months226E Prem Shankar Shukla vs Delhi Administration   referred to