9911796707
TMI Blog1958 (2) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... houses, No. 86/1, Cornwallis Street and No. 7-C, Kirti Mitter Lane, Calcutta. On May 19, 1934, he executed a mortgage for ₹ 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 of ₹ 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 (A.I.R. 1955 Cal. 484.). 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, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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, 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson claiming under him. It has been held in Sitharamaswami v. Lakshmi Narasimha (1918) I.L.R. 41 Mad. 510) that an appeal is a proceeding for the 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. ([1955] i S.C.R. 1369), 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. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It has been held by a Full Bench of the Madras High Court in Muthiah Chettiar v. Oovinddoss Krishnadass ((1921) I.L.R. 44 Mad. 919) that the assignee of a part of a decree is entitled to continue an execution application filed by the transferor-decree-holder. Vide also Moidin Kutty v. Doraiswami (I.L.R. 1952 Mad. 622). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontract rate. Then a sum of ₹ 5,000 is included as for costs incurred by the mortgagee in suits other than Suit No. 158 of 1935 and in proceedings connected therewith. The appellant contends that the properties in her hands could, under no circumstances, be made liable for this amount. A sum of ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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