Sm. Saila Bala Dassi Vs. Sm. Nirmala
Sundari Dassi & ANR  INSC 8 (14 February 1958)
14/02/1958 AIYYAR, T.L.
VENKATARAMA AIYYAR, T.L. VENKATARAMA DAS, SUDHI RANJAN (CJ) SARKAR, A.K.
CITATION: 1958 AIR 394 1958 SCR 1287
Civil Procedure-Addition of Party-Tran sfer
Pendentelite- Appeal filed by tyansferor-Right of transferee to continue appeal
Code of Civil Procedure (Act 5 of 908), s. 146, 0. 22, Y. IO.
The second respondent sold the properties to
the appellant in ,952 and the deed of sale recited that the properties were
sold free of all encumbrances. The first respondent who had obtained a mortgage
decree in respect of the properties in 1935 did not take any steps to have the
decree drawn up as required under the Original Side Rules of the Calcutta High
Court until 1954, when she commenced proceedings for sale of the mortgaged
properties. The second respondent raised the objection that the execution of
the decree was barred by limitation but that was overruled by a single judge of
the High Court and an appeal against that order was preferred by the second
Apprehending that the second respondent might
enter into a collusive arrangement with the first respondent with a view to
defeat her rights, the appellant made an application in the High Court under 0.
22, r. 10 of the Code of Civil Procedure praying that she might be substituted
in the place of the second respondent, or in the alternative, be brought on
record as additional appellant. The High Court having dismissed the
application, the appellant brought the present appeal:
Held, that the application could not be
sustained under 22, r.10, of the Code of Civil Procedure because (i) assuming
that 1288 the suit was considered as having been pending until the decree was
drawn up in 954 no application was made to the Court where the suit was pending
as provided in 0. 22, 10, and (ii) the application made to the appellate Court
was also not within 0. 22, r. 10, as the transfer in question was made prior to
the filing of the appeal and not during its pendency.
The application, however, falls within s. I46
of the Code of Civil Procedure and the appellant is entitled to be brought on
record since an appeal is a proceeding within the meaning of that section and
the right to file an appeal carries with it the right to continue an appeal
which had been filed by the person under whom the appellant claims.
Jugalkishore Sayaf v. Raw Cotton Ltd., 
I S.C.R. 1369, Sitharamaswami v. Lakshmi Narasimha, (1918) I.L.R. 41 Mad.
51O and Muthia Chettiar v. Govinddoss
Kyishnadoss, (1921) I.L.R. 44 Mad. gig, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No.350 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
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. 86/1, Cornwallis Street and No. 7-C, 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
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. 3,914-6-6 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 order,shall 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. 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, 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
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 v. 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
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. 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 0. 22, r. 10 of the Civil Procedure
Code and it was dismissed, as it was conceded that the applicant, (1) A.I.R.
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 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.
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 v. 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 s. 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 v. Lakshmi
Narasimha (2) that an appeal is a proceeding for the (1) (1923) 27 C.W.N. 755.
164 (2) (1918) I.L.R. 41 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 v. 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 s. 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.
It is next contended that s. 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 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. Oovinddoss Krishnadass (2) that the assignee of a part of a (1)
 i S.C.R. 1369.
(2) (1921) I.L.R. 44 Mad. 919.
1293 decree is entitled to continue an
execution application filed by the transferor-decree-holder. Vide also Moidin
Kutty v. 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 s. 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.
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
therefrom that a sum of Rs. 7,200 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. 5,000 is included as for costs incurred by the
mortgagee in suits other than (1) I.L.R. 1952 Mad. 622.
1294 Suit No. 158 of 1935 and in proceedings
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 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 re Mathews. Oates v. Mooney (1), and Vanjiappa Goundan v. 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.
(1) (1905) 2 Ch. 460. (2) (1939) 2 M.L.J.