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

2. The second respondent, Sudhir Kumar Mitter, was the owner of two houses, No. 86/1, Cornwallis Street and No.Kirti Mitter Lane, Calcutta. On May 19 1934, :he executed a mortgage for Rs. 3,000 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 preliminary 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 of Rs.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 providessuch application for drawing up a decree or order is not made within the time aforesaid, the decree or order shall not be drawn up except under order of Court or a Judge to be obtained, unless otherwise ordered, by a petition eximportance 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.3. 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. 60,000 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, grating her leave to drew up and complete the decree. That having been done pursuant to the order, she filed on April 29, 1954 the final decree, and commenced processings for sale of the mortgaged properties.4. 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 counsel for both the respondents, he held that the execution of the decree was not barred. Vide Judgment reported in Nirmala Sundari v. Sudhir Kumar (S) AIR 1955 Cal 484   (A). Against this judgment, the second respondent preferred Appeal No. 152 of 1955, and that is still pending.5. 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 becomethat 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 on 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.6. The application was strenuously opposed by both the respondents. They stated that they had entered into an arrangement settling the amount de to the first respondent at Rs. 17,670, 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 Art. 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 O. 22, r. 10 of the Civil Procedure code and it was dismissed, as it was conceded that the applicant, 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 O. 22 r. 10 which merited favourable consideration had not been mentioned at the previous hearing, and that no certificate could be granted under Art. 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 Art. 136 of the Constitution, and that is how the appeal comes before us.

Reasoning: 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.