1974 (4) TMI 95 - SC - Indian Laws

Whether the High Court correct to allow the amendment with a laconic order Application for amendment allowed .? Held that - The appeal filed by defendants 2 and 3 being directed against a mere finding given by the trial court was not maintainable; defendants 2 and 3 were not denied by the preliminary decree the right to pay the decretal amount; and the two defendants could 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 not interested in paying the amount. The High Court was therefore wholly in error in allowing the amendment of the Memorandum of Appeal, particularly when defendants 2 and 3 had neither explained the long delay nor sought its condonation - we allow the appeal with costs, set aside the judgment of the High Court and restore that of the trial court.

Issues Involved:
1. Validity of the mortgage executed by defendant 1 on behalf of himself and his minor son.
2. Genuineness of the partition deed executed among the defendants.
3. Competence and maintainability of the appeal filed by defendants 2 and 3.
4. Rights of defendants 2 and 3 to redeem the mortgage and challenge the preliminary decree.
5. Legality of the High Court's decision to allow the amendment of the Memorandum of Appeal by defendants 2 and 3.

Detailed Analysis:

1. Validity of the Mortgage Executed by Defendant 1:
The trial court held that part of the consideration for the mortgage was not supported by legal necessity and the balance of the debt was tainted with immorality. Consequently, while defendant 1 executed the mortgage as the manager of the joint Hindu family, the debt was not binding on the one-half share of defendant 2 in the mortgaged property.

2. Genuineness of the Partition Deed:
The trial court found the partition deed executed among the defendants to be a sham and colorable transaction intended to delay or defeat the creditors. This finding was challenged by defendants 2 and 3 in their appeal.

3. Competence and Maintainability of the Appeal Filed by Defendants 2 and 3:
The High Court held that the appeal filed by defendants 2 and 3 was competent even though the suit was wholly dismissed against them. The High Court reasoned that defendants 2 and 3 were aggrieved by the adverse finding on the question of partition and the denial of their right to redeem the mortgage under the preliminary decree.

However, the Supreme Court found that the appeal filed by defendants 2 and 3 was directed against a mere finding recorded by the trial court, which is not maintainable under the Code of Civil Procedure. The right of appeal must have clear authority of law, and no appeal can lie against a mere finding as the Code does not provide for any such appeal.

4. Rights of Defendants 2 and 3 to Redeem the Mortgage and Challenge the Preliminary Decree:
The Supreme Court observed that there was nothing in the preliminary decree that precluded defendants 2 and 3 from depositing the decretal amount to redeem the mortgage. The trial court had passed the usual preliminary decree for sale under Order 34, Rule 4, Civil Procedure Code. Defendants 2 and 3 had multiple opportunities to pay the amount due and redeem the mortgage but failed to do so.

5. Legality of the High Court's Decision to Allow the Amendment of the Memorandum of Appeal:
The Supreme Court found that the High Court erred in allowing the amendment of the Memorandum of Appeal. The amendment was sought after a delay of over 7.5 years without any explanation or application for condonation of delay. The appeal was originally directed against the finding that the partition was sham, and the High Court allowed the amendment without good cause shown, impacting the preliminary decree, the final decree, the auction sale, and the sale certificate granted to the appellant.

Conclusion:
The Supreme Court allowed the appeal, set aside the judgment of the High Court, and restored the judgment of the trial court. The appeal filed by defendants 2 and 3 was not maintainable as it was directed against a mere finding, and the High Court erred in allowing the amendment of the Memorandum of Appeal. The preliminary decree had remained unchallenged since September 1958, and a valuable right had accrued in favor of the decree-holder. The exercise of discretionary powers to allow the amendment was not justified in this case.

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