Ram Dao Mondal vs Indromoni Dasi Executrix To the Estate of the Late Ganga N. Sarkar, Who Appeared and Haro Mondal and Others

This is an appeal against an order of remand under sec. 562, C. P. C. The Defendant who is the Appellant contends that the Court had no power to make a remand under that section and that, under the circumstances of the case, no remand under any section ought to have been made. It appears that the Plaintiff claimed the property in suit an purchaser at a sale in execution of a decree obtained against Defendants 2 and 3. His purchase was in November 1893. He took possession through the Court and the present De-fondant then intervened under sec. 335, C. C. P., alleging that he had been dispossessed and got an order reinstating him in possession. In that case he set up a title as purchaser of a moiety of the tenure from Defendants 2 and 3 in 1890, as usufructuary mortgagee of the other moiety on the same date and as a purchaser of the equity of redemption in 1894. The Plaintiff brought this suit to get rid of the order under sec. 335 and challenged all the transactions and documents upon which the Defendant relied as fraudulent and collusive. The parties went to trial in the first Court on the issues of fraud and collusion and it was found that the documents relied upon by the Defendant were bond fide and good and that he was entitled to possession as purchaser of one moiety in 1890, and as usufructuary mortgagee of the other moiety and the suit was dismissed with costs.

Against that decision the Plaintiff appealed. In the Appellate Court he abandoned the charges of fraud and collusion, but contended, amongst other things, that he should have got a decree for possession in respect of the moiety covered by the Defendant''s mortgage inasmuch as that mortgage was satisfied by the sale to the Defendant in 1894 and that, by reason of his purchase in 1893, he was a prior purchaser of the equity of redemption.

The Subordinate Judge, on appeal, affirmed the Munsif''s decision as regards the moiety which the Defendant obtained by purchase. As to the other moiety, he held that the Defendant was entitled to possession as usufructuary mortgagee but that the prior right of redemption being vested in the Plaintiff, the suit should be regarded as one for redemption of mortgage. He set aside the Munsif''s decision in so far as it related to that part of the case and remanded it for trial of the issues which would arise in a redemption suit. In making the remand, the Subordinate Judge does not refer to any section of the Code of Civil Procedure, but it is quite clear that his order was made under sec. 562, for he reversed the decree of the Munsif and directed that the costs should abide the result of the enquiry ordered and that lower Court should make a decree after making the enquiry ordered.

It is quite clear that sec. 562 had no application to a case like this, and that the Subordinate Judge had no power to make a remand under that section. The first Court had not decided the suit on any preliminary ground, hut tried the ease out. The issue which the Subordinate Judge thought proper to raise was an entirely new issue in the ease, and if any such issue could properly have been raised, it could only have been done under sec. 566. The order of remand cannot therefore stand. Then the remaining question is whether the Subordinate Judge ought to have allowed the Plaintiff to proceed with this suit as a suit for redemption and to have directed a further enquiry on the questions which would arise if the suit was so treated. Now the basis of the Plaintiff''s suit was fraud. Ho came into Court with full knowledge of the title set up by the Defendant by his kabalas and his mortgage and the object of the suit was to have those documents declared to be fraudulent and invalid and to recover possession of the land on the strength of his title by purchase in 1893. As I have stated before, the case was fought out on the issue of fraud and the appeal to the Appellate Court was substantially on the ground that the decision of the first Court on the question of fraud was wrong. When that ground was abandoned in the Appellate Court the Appellant asked that the suit should be treated as one for redemption. No doubt there are cases to be found in which the Court has allowed a suit for possession, under special circumstances, to be converted into a suit for redemption on the establishment of an existing mortgage, but I know of no case in which a suit, based on fraud and fought out on the ground of fraud and dismissed in the first Court on the ground of there having been no fraud, has, in the Appellate Court, been converted into one for redemption. We think that the Subordinate Judge ought not to have dealt with the case in that way or raised an issue which was quite inconsistent with the issues upon which the Plaintiff went to trial. We set aside the decree of the Appellate Court and direct that the decree of the Munsif be restored with costs in both Courts.