Namar Ali vs Khalwan Goala and Others

Sarjoo Prosad, C.J.—The Plaintiff-Appellant m this case instituted a suit for redemption m respect of a mortgage bond dated 12. 4. 35 covering an area of 3B 12K and 13 Chataks of land corn-prised in Dag Nos. 20 and 21 and covered by pattas 8 and 7 respectively of the Didarkush No. 2. The bond in question was executed by two persons Annamoni Devi, widow of one Anchit Ram Das who was Defendant No. 2 in the action and-one Akru Ram Das. Akru Ram Das died before the institution of the suit and his son Aswini Kumar Das and his widow have been made parties to the suit as Defendants 3 (ka) and 3 (kha). Now the mortgage was a usufructuary mortgage to secure payment of a loan of, Rs. 65/- only ; but it appears that the mortgagee gave a lease to Aswini Kumar Das the Defendant No. 3 of the mortgaged lands and this Defendant continued to be in possession of the lands.

On the 9th June 1935, Musst. Annamoni Devi, the Defendant. No. 2 transferred her entire interest in tho mortgaged lands to one Mmio-mohan . Adhikary whose heirs have been implead- ed as Defendant 4 series in the action. Mano-mohan as a transferee of the interest of one of the mortgagors tried to take possession of the lands sold, to him without .seeking to redeem the mortgage- This led to a proceeding u/s 145, Code of Criminal Procedure in which these lands were attached and subsequently the proceedings terminated in favour of the mortgagee.

The decision in the Section 145 Code of Criminal Procedure proceedings was given on the 19th September 1935, Manomohan did not seek for redemption of the mortgage and later it appears he transferred the lands purchased by him on 20.1.48 in favour of the Plaintiff. It would thus appear that Plaintiff is a transferee of the interest of one of the mortgagors Annamoni Devi, the Defendant No. 2. Plaintiff then instituted the suit for redemption of the mortgaged lands, impleading the Defendants aforesaid as parties to the suit.

The learned Munsiff gave a decree to the Plaintiff. The decree shows that he directed the Plaintiff to recover possession of the mortgaged lands from all the Defendants including the co-mortgagor, the Defendant No. 3 or the heirs of Akru Ram Das. Against this, there was an appeal which was allowed by Mr. C.N. Bora, Second Additional Subordinate Judge of Upper Assam Districts. The ileiarned Subordinate Judge was of the view that on account of Manomohan''s failure to institute a suit for recovery of possession of the lands, within three years of the date of the order in the proceedings u/s 145 Criminal Procedure Code, the present suit for redemption was barred. It is against this decree that the appeal has been preferred.

The judgment of the learned Subordinate Judge shows that the plea of limitation was the main plea taken before him. The learned Subordinate Judge thought that the order in the 145 proceedings being clearly against Manomohan who was the. first party, to that proceeding, he was bound to institute a suit within the period of limitation provided by Article 47 of the Limitation Act. Manomohan failed to do so and therefore his right, title and interest in the lands whatever they were extinguished by the operation of section 28 of the Limitation Act.

The Plaintiff therefore who is a mere transferee from Manomohan, according to the learned Subordinate Judge, could not institute the present suit for redemption as, Article 47 of the Limitation Act read with Section 28 of the Act was a bar to the suit. The learned Subordinate Judge concedes that the Plaintiff could bring the suit for redemption within the period of limitation provided by Article 148 of the Limitation Act. But Article 47 of the Act curtailed the ordinary period of limitation on account of the special facts stated by him. On the face of it, the decision of the learned Subordinate Judge is clearly untenable, The order in the proceeding u/s 145 Code of Criminal Procedure did not confer any unqualified right of possession on the mortgagee.

The order simply meant that it recognised the-possession of the mortgagee in respect of the lands or restored the ''mortgagee''s possession if the mortgagee was out of possession. It could not confer any higher title on the mortgagee and there is nothing to show in the circumstances of this case that the mortgagee had started prescribing against the mortgagors under soma exclusive or paramount title. In fact, there would be no such, presumption unless the facts pleaded and proved were/ to the contrary. The relationship of the mortgagor and mortgagee which admittedly existed between the parties would continue to subsist even after the order in the proceeding u/s 145, Code of Criminal Procedure; and therefore it is wrong to assume .that the period of limitation provided by Article 148 for redemption of the mortgage was cut down by the operation of Article 47 or Section 28 of the Limitation Act.

I may refer in this connection to a decision in AIR 1944 250 (Oudh) The learned Judges in that case with reference to similar circumstances pointed out.

The order of restoration implies nothing except that he was previously in possession. It does not imply that he was previously in adverse possession. Had he previously claimed to be in possession as a mortgagee or lessee he would not have been prescribing Uieleafler for an absolute title unless he made this clear to all concerned and the only effect of failure of the person who had dispossessed him to sue after the order u/s 145 would be that that person would be barred after the period of three years from disputing Ms right l-o be in possession as a mortgagee or lessee. ''1''he effect would not be to extinguish the mortgage or lease and give the person claiming to be mortgagee or lessee an absolute title to the property. The liirsled right would not ripen into .full ownership.

That at least is how we construe Article 47 considered with Section 28 a ad it seems to us that it is supported by the terms of the article.

I respectfully agrees with the above proposition. It is therefore impossible to uphold the judgment and the decreet of the learned Subordinate Judge on that ground.

Mr. Ghose has fairly conceded so far as this aspect of the matter goes but the learned Counsel has contended that the suit was bad for defect of parties under Order 34, Rule 1 of the CPC under which it is provided that all persons interested in the mortgage .security or in the right of redemption should be joined as parties to the suit. He contends that this was not done in the present case and he relies upon the finding of the learned Munsiff bearing on Issue No. 5 where it was held that some of the hears of Akrur Mom were not impleaded in the suit.

The learned Munsiff held that these heirs should have been so impleaded but the non-joinder could not defeat the suit. As I have already stated earlier, one of the mortgagors, Akrur Moni died prior to the institution of the suit and the plaint itself shows that on his death his heir Aswini Kumar Das, who was admittedly the lessee under the mortgagee, and the widow of Akrur Moni were impleaded as Parties to the suit.

In the written statement which was filed on behalf of Aswini Kumar Das, the Defendants raised the plea of non-joinder of parties and alleged Ihfil some of the heirs of the oslale left by Akrur Moni had not boon impleaded as parties but none of those heirs was .specifically mentioned. In the evidence, if was for the first limo disclosed by Aswini Kumar Das that he had two other brOrs. Anil and Aemnta who wore, also heirs in addition to his mother Ialii Devi and those two brOrs. Anil and Aehinia were not impleaded. The learned Munsiff did not all any importance to this defect of parties because he thought it would not defeat the suit.

The provisions of Order 34, Rule 1 are imperative and if he meant that these heirs could be treated as being merely proper parties to the suit, then-it would be clearly wrong. These heirfl would have been necessary parties and the provisions of Order 34, Rule 1 are imperative; but in the circumstances of this case, it appears to me that the heirs of Akru Ram Das who are already on the record sufficiently represent these other sons of Akru Ram also.

Aswini Kumar Das himself appears to be the lessee of the mortgaged properties from!'' the mortgagee and the mother also has been made party to the suit. In any opinion, the heirs of Akru Ram Das are sufficiently represented by these two parties. In ''the written statement, no specific allegation was made as to which of the heirs had been left out and it appears that oven before the lower appellate Court, the point was no seriously pressed although ho suit had, been decreed in favour of the Plaintiff by the learned Munsiit.

In the circumstances, I think that the provisions of Order 34, Rule 1, have been fully complied with and in second appeal, I am not disposed to hold thai, the omission to implead the two sons of Akru Ram Das and the brOrs. of; Aswini Kumar Das was fatal to the suit. The result is that the decision of the learned Subordinate Judge, is set aside. The suit is decreed in favour of the Plaintiff.

The Plaintiff is entitled to a decree for redemption on deposit of Rs. 65/- in Court within, one month from the receipt of the records by the Court below and on such deposit being made, the mortgage will stand redeemed and Plaintiff will be entitled to possession of the mortgaged properties along with the heirs of the co-mortgagors to the extent of the interest purchased by him. In the circumstances of the case, I shall make no order for costs of this appeal or those of the Courts below.