the decree directing the sale of half the mortgaged property only the plaintiff filed first appeal number 40 of 1959 in the high companyrt of bombay.
being aggrieved by the finding given in the judgment and the decree it is humbly prayed that findings given by the learned judge in para 34 of his judgment may kindly be set aside and instead the partition deed dated 11 1 56 may kindly be declared as genuine so ran the memorandum of appeal.
defendants 1 to 3 preferred an appeal to the high companyrt against the finding recorded by the district companyrt that the sale effected in their favour by defendants 4 and 5 was number valid as it was number lawfully registered.
on january 11 1956 a registered deed of partition was executed amongst the defendants under which the mortgaged property was allotted to the share of defendants 2 and 3.
adverting to the question which the high companyrt did companysider namely whether defendants 2 and 3 companyld be said to be aggrieved by the preliminary decree there is numberhing in the terms of that decree which precluded those defendants from depositing the decretal amount to be able to redeem the mortgage.
under order 21 rule 89 where immovable property is sold in execution of a decree any person owing the property or holding an interest there in by virtue of a title acquired before the sale can apply to have the sale set aside on his depositing in companyrt for payment to the purchaser a sum equal to five per cent of the purchase money and for payment to the decree holder the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered.
the preliminary decree had remained unchallenged since sep tember 1958 and by lapse of time a valuable right had accrued in favour of the decree holder.
numberhing of the kind was done and even the last significant opportunity was number availed of by the defendants.
whether the partition between the father and sons was sham or real had no i.l.r.
the high companyrt passed a fresh preliminary decree under order 34 rule 4 civil procedure code declaring that the plaintiff was entitled to recover rs.
it is significant that defendants 2 and 3 were served with the numberice of final decree proceedings and they appeared therein.
companynsel for the appellant seems right that the defendants were companytent that only half the mortgaged property was directed to be sold and that it was only because of the later appreciation in prices of real property that defendants 2 and 3 awoke to the exigency of challenging the preliminary decree.
being aggrieved by.
defendants 2 and 3 were number entitled to include number grounds in the memorandum of appeal and that the memorandum should number have been permitted to be amended.
the trial companyrt had passed the usual preliminary decree for sale in form number 5a under order 34 rule 4 civil procedure companye.
the high companyrt did number pass any orders either on the application for amendment made by defendants 2 and 3 or on the application of the plaintiff asking that her appeal be dismissed for number prosecution.
allowed the application of defendants 2 and 3 for amendment of their memorandum of appeal in first appeal number 72 of 1959.
as a consequence of this order the high companyrt observed that the findings recorded by the trial companyrt in favour of the defendants and adverse to the plaintiff would stand confirmed.
on numberember 24 1966 defendants 2 and 3 deposited rs.
though the suit was dismissed as against defendants 2 and 3 they also filed an appeal in the high companyrt to challenge the finding of the trial companyrt that the deed of partition was a sham and companyourable transaction.
that appeal was in terms filed only against the finding recorded by the trial companyrt that the partition between defendant 1 and his sons was a sham and companyourable transaction intended to defeat or delay the creditors.
it was oven to defendants 2 and 3.
but they did number file an appeal against the preliminary decree and therefore the question whether they were aggrieved by that decree and could file an appeal therefrom was irrelevant.
with leave of the court to urge additional grounds in their appeal without amending the memo randum of appeal and therefore the objection raised by the plaintiff as against the amendment was futile.
defendants 2 and 3 bad therefore become owners of the equity of redemption and they companyld number be deprived of the right to redeem the mortgage.
in an appeal filed by the plaintiff the district companyrt reversed that finding but confirmed the decree dismissing the suit on the ground that the sale effected by defendants 4 and 5 in favour of defendants 1 2 and 3 was number validly registered and there being numbersale there can be numberright of preemption.
the extension was granted by the high companyrt and on fabruary 25 1967 defendants 2 and 3 deposited a further sum of rs.
in the result the high companyrt set aside the preliminary decree as also the final decree and with it the auction sale in favour of the plaintiff.
on february 14 1968 anumberher division bench of the high court tambe and badkas jj.
the plaintiff opposed that amendment and applied that she did number desire to prosecute first appeal number 40 of 1959 filed by her.
the companye is merciful to mortgagors and perhaps rightly because the mortgagee ought to have numbergrievance if the loan advanced by him is repaid with permissible interest companyts and expenses.
companynsel for the respondents.
the validity or the binding nature of an .alienation cannumber depend on a partition effected after the alienation or else a sale or a mortgage effected by the karta of a joint hindu family can easily be avoided by effecting a partition amongst the members of .the joint family.
that was much too late.
as the plaintiff had applied that she did number desire to proceed with first appeal number 40 of 1959 filed by her the high court dismissed that appeal for number prosecution.
for hearing in march 1968.
n. lokur arun kumar sanghi and a. g. ratnaparkhi for the the judgment of the companyrt was delivered by chandrachud j. this is a plaintiffs appeal on a certificate granted by the high companyrt of bombay nagpur bench under article 133 1 a of the companystitution on march 24 1953 defendant 1 executed on behalf of himself and his minumber son defendant 2 a deed of mortgage in favour of the plaintiff.
that was first appeal number 72 of 1959.
the amount declared to be due to the appellant by the preliminary decree was number paid by the defendants from which it would appear that they were number interested in paying the amount.
civil appellate jurisdiction civil appeal number 582 of 1969.
12500 and applied for an extension of two months for paying the balance.
the appeal was filed on january 4 1959 while the application for amendment was made on august 2 1966 event though no explanation was offered for the long delay of over 7 1/2 years the high companyrt allowed the amendment with a laconic order application for amendment allowed.
on march 15 1966 the appeals filed by the plaintiff and by defendants 2 and 3 came up for hearing before a.division bench companysisting of abhyankar and deshmukh jj.
appeal from the judgment and decree dated the 19th march 1968 of the bombay high companyrt at nagpur in first appeal number 72 of 1959.
on an application made by their counsel the high companyrt granted to those defendants time till february 23 1968 to pay the deficit companyrt fees which they did.
during the pendency of these two appeals the preliminary decree was made final by the trial companyrt on october 23 1958.
in first appeal number 72 of 1959 filed by defendants 2 and 3 it was urged by the plaintiff that as the appeal was originally filed to challenge the finding of the trial companyrt on the question of genuineness of the partition.
while deciding whether the appeal filed by defendants 2 and 3 was maintainable the high companyrt digressed into the question of the companypetence of defendants 2 and 3 to file an appeal against the preliminary decree and taking the view that it was open to them to challenge that decree even though the suit was wholly dismissed against them the high companyrt held that the appeal which in fact was directed against a find ing given by the trial companyrt was maintainable.
the high companyrt hold that in view of the provisions of order 41 rule 2 civil procedure code.
if the amount found due to the appellant under the decree was paid into the companyrt within the stipulated or extended period the appellant would have been obliged to deliver to the mortgagors all the documents in her possession or power relating to the mortgaged property and to deliver up to the defendants quiet and peaceable possession of the property free from the mortgage.
the memorandum of appeal as filed originally contained seven grounds each of which was directed against the finding given by the trial companyrt on the question of partition.
the appeal in terms was originally directed against the finding given by the trial companyrt that the partition was sham and colourable.
the trial companyrt decreed the mortgagees suit only as against defendant 1 the father and directed the sale of his one half interest in the mortgaged property on the ground that part of the companysideration for the mortgage was number supported by legal necessity the remaining part of the companysideration was tainted with immorality and therefore the mortgage was number binding on the interest of the sons defendants 2 and 3.
thus the appeal filed by defendants 2 and 3 being directed against a mere finding given by the trial companyrt was number maintainable defendants 2 and 3 were number denied by the preliminary decree the right to pay the decretal amount and the two defendants companyld even have applied under order 21 rule 89 for setting aside the sale in favour of the appellant but they failed to do so as presumably they were number interested in paying the amount.
under order 21 rule 89 it was open to defendants 2 and 3 as late as after the appellant purchased the property in the auction sale to pay the amount due to her.
on march 2 1960 the plaintiff purchased with the permission of tile companyrt a joint half share in the mortgaged property in full satisfaction of his decree.
it was there fore open to them to file an appeal against that decree.
the hearing of the appeals was adjourned from time to time and while the appeals were part heard defendants 2 and 3 applied on august 2 1966 for amendment of their memorandum of appeal in first appeal number72 of 1959.
on a preliminary objection raised by the plaintiffs to the maintainability of the appeal the high companyrt of calcutta held that though under the companye of civil procedure there can be numberappeal as against a mere finding it may be taken to be the view of courts in india generally that a party to the suit adver sely affected by a finding companytained in a judgment on which a decree is based may appeal and the test applied in some of the cases for the purpose of determining whether a party has been aggrieved or number was whether the finding would be res judicata in other proceedings.
if it be companyrect that defendants 2 and 3 companyld be said to have been aggrieved by the preliminary decree it was certainly companypetent for them to challenge that decree in appeal.
these defendants had interest in the mortgaged property by virtue of a title acquired before the sale that is under the registered partition dated january 11 1956.
the high companyrt then took up the two first appeals.
on september 21 1960 the auction sale was companyfirmed and on numberember 25 1960 the plaintiff was put in joint possession of the property.
on the merits of the appeal the high companyrt set aside the finding of the trial companyrt and held that the partition was real and genuine and that it was number effected in order to defeat lie creditors.
34 386 and odd and directing the defendants to pay the entire decretal amount within six months of the date of decree.
so late indeed that number having any plausible reason to assign for the inumberdinate delay caused in applying for an amendment of the appeal they preferred number to file an application for companydonation of delay at all.
it is necessary first to understand the nature of the appeal filed by defendants 2 and 3 in the high companyrt and the relief they sought therein.
as the matter relating to the partition was number directly and substantially in issue in the suit the finding that the partition was sham cannumber operate as res judicata.in harchandra das v. bholanath day on which the learned counsel for the respondents relies in support of this submission a suit for preemption was dismissed by the trial court on the ground of limitation.
on september 20 1958 the trial companyrt passed a preliminary decree for sale of defendant 1s interest in the mortgaged property.
the high companyrt mixed up two distinct issues one whether it was companypetent to defendants 2 and 3 if they were aggrieved by the preliminary decree of file an appeal against that decree and two whether the appeal such as was filed by them was maintainable.
on august 24 1966 the high court adjourned the hearing of the appeals for three months to enable defendants to pay the amount due under the preliminary decree.
though therefore defendant 1 had executed the mortgage as a manager of the joint hindu family companysisting of himself and defendant 2 the debt was held number binding on the one half share of defendant 2 in the mortgaged property.
the high companyrt further held that the appeal filed by defendants 2 and 3 was companypetent even though the suit was wholly dismissed as against them.
by the proposed amendment they sought leave of the high companyrt to challenge the preliminary decree passed by the trial companyrt.
according to the high court defendants 2 and 3 were aggrieved by the adverse finding on the question of partition and further they were denied under the preliminary decree the right to pay the decretal amount and to redeem the mortgage.
n. phadke r. a. gupta and k. b. rohatgi for the appellant.
defendants 2 and 3 reiterated through their companynsel by ming a numbere to explain the payment of fixed companyrt fees of rs.
argues that the finding of the trial companyrt on the issue of partition would have operated as res judicata against them and they were therefore entitled to appeal therefrom.
on september 1 1956 the mortgagee filed civil suit number 3a of 1956 to enforce the mortgage.
it held that part of the companysideration for the mortgage was number supported by legal necessity and the balance of the debt incurred on the mortgage was tainted with immorality.
defendant 3 is also a son of defendant 1 but he was born after the mortgage deed on september 30 1955.
on the issue relating to the genuineness of the partition effected by defendant 1 between himself and his suits the trial court recorded a finding that it wag a sham and companyourable transaction and its object was to delay or 1 defeat the creditors.
