Case: Saila Bala Dassi Vs. Nirmala Sundari Dassi &amp; Another

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 on record under O. 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.8. It is next contended that S. 146 authorises only the initiation of any proceeding, and that thought it would have been competent to the appellant to have preferred an appeal against the judgment 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 S. 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 v. Govinddoss Krishnadoss, ILR 44 Mad 919 : (AIR 1921 Mad 599 ) (E) that the assignee of a part of a decree is entitled to continue an execution application filed by the transfereor-decreeholder. Vide also Moidin Kutty v. Dorai swami, ILR (1952) Mad 622): (AIR 1952 Mad 51 ) (F).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 maintainable under S. 146.9. 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. 60,000 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. 17,670. 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. 6,000. 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. 17,670 was made up. It will be seen there from that a sum of Rs. 7,200 is claimed for interest upto March 8, 1956, calculating it not at the rate provided in the final decree but at the contract rate. Then a sum of Rs. 5,000 is included as for costs incurred by the mortgagee in suits other than 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. 1,750 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 has would be given an opportunity to protest her rights.10. 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 O. 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 v. Mooney, 1905-2 Ch. 460 (G), and Vanjiappa Goundan v. Annamalai Chettiar, 1939-2 Mad LJ 551: (AIR 1940 Mad 69 ) (H). 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It would follow from the above authorities that whoever is entitled to be but has not been brought on record under O. 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,our opinion, the application filed by the appellant falls with in S. 146 of the Civil Procedure Code, and she is entitled to be brought on record under that section.It is next contended that S. 146 authorises only the initiation of any proceeding, and that thought it would have been competent to the appellant to have preferred an appeal against the judgment 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 secondrespondent. We are not disposed to construe S. 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 v. Govinddoss Krishnadoss, ILR 44 Mad 919  : (AIR 1921 Mad 599  ) (E) that the assignee of a part of a decree is entitled to continue an execution application filed by theVide also Moidin Kutty v. Dorai swami, ILR (1952) Mad 622): (AIR 1952 Mad 51  ) (F).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 maintainable under S.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 has would be given an opportunity to protest her rights.10. 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 O. 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 v. Mooney,Ch. 460 (G), and Vanjiappa Goundan v. Annamalai Chettiar,Mad LJ 551: (AIR 1940 Mad 69  ) (H). 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.