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  • Jwala Prasad
  • A.C.J
  • Das, J.
Acts
  • section 2, Cl. 2 of the Code
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Citation Codes
Equivalent Citations
citation codes
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Judges
  • Jwala Prasad
  • A.C.J
  • Das, J.
Acts
  • section 2, Cl. 2 of the Code
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Smart Summary

Structured Summary of the Opinion — Jwala Prasad, A.C.J.

Factual and Procedural Background

The suit arises from a mortgage dated 11 August 1914 executed by Shib Lal (Defendant No. 1) and Mahabir (father of Defendant No. 2). Ramchandra (Defendant No. 4) is the son of Defendant No. 1. Mahadeo Lal (Defendant No. 3) is a subsequent purchaser of the equity of redemption in execution of a decree; Defendants Nos. 5–8 are members of his family. One family member, Shibnath (son of Jagannath, described as Defendant No. 6 in the pleadings), was not on the record.

The courts below (trial and lower appellate court) declined to grant a mortgage decree on several grounds: they entered only a personal decree against Defendants Nos. 1 and 2; dismissed the suit as against Ramchandra on the ground that "legal necessity" or benefit from the loan to him was not proved; dismissed the suit as against subsequent purchasers and certain family members on the ground that an earlier order dated 6 June 1916 (in Plaintiff's Suit No. 892 of 1915) operated as res judicata; and further held that because Shibnath (a family minor) was not on the record a mortgage decree could not be passed.

The appellant challenged each of these grounds and appealed. The present opinion reviews the legal questions raised by those grounds and the validity/effect of the prior order dated 6 June 1916.

Legal Issues Presented

  1. Whether, given the pleadings and findings that the mortgage consideration was an antecedent debt of the father, the plaintiff was required to prove family necessity or benefit to family members (or minors) to obtain a mortgage decree.
  2. Whether the omission of a minor family member (Shibnath) from the record prevented the grant of a mortgage decree, or whether other parties on the record sufficiently represented that minor's interests.
  3. Whether the earlier order of dismissal dated 6 June 1916 was a valid order under the Code of Civil Procedure (in particular whether it fell under O. IX, R. 8 or otherwise) and, if valid under R. 8, whether it operated as a bar to the present suit by way of R. 9 (res judicata/effect of dismissal for default).

Arguments of the Parties

Appellant's Arguments

  • The appellant (plaintiff below) challenged the lower courts' grounds for refusing a mortgage decree on three fronts: (a) the alleged requirement to prove family necessity when the consideration for the mortgage was an antecedent debt, (b) the omission of the minor Shibnath from the record, and (c) the asserted effect of the prior dismissal order of 6 June 1916 as res judicata.
  • Specifically, the appellant's counsel (learned Vakil) contended that where the consideration is an antecedent debt of the executant, the plaintiff is not required to prove legal necessity or benefit to the sons of the executant in order to obtain a mortgage decree.

Respondents' / Lower Courts' Positions

  • The trial and lower appellate courts declined to grant a mortgage decree on the grounds that: (a) the plaintiff had not proved that the loan was beneficial to the family or that there was legal necessity for the advance; (b) a person omitted from the record (the minor Shibnath) could not be unrepresented and therefore a mortgage decree could not be passed in his absence; and (c) an earlier order dated 6 June 1916 dismissed a prior suit for default and that dismissal operated as res judicata to bar the present suit.
  • Respondents relied on the prior order of dismissal (6 June 1916) as barring the present suit under the Code (res judicata / provisions dealing with dismissal for default).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Girwar Narain Mahton v. Musammat Makbunessa Principle that a plaintiff in a mortgage suit must bring every person interested in the mortgage or in the equity of redemption on the record. The court accepted that principle as "right" but held that where the record shows sufficient representation of the joint family members, omission of one member (here, the minor Shibnath) does not defeat the suit; the plaintiff had impleaded the purchaser and most family members and the omission was inadvertent.
Jag Sah v. Ram Chandra Prasad Authority supporting the competency of a purchaser (or head of family in whom property stands) to represent other family members in litigation concerning the same property. Cited by the court to support the conclusion that Mahadeo (in whose name the property stood) could competently represent the family and that representation on the record was adequate despite omission of one minor member.
Balmukand Marwari v. Lachmi Narain Marwari Cited among authorities relevant to the rules under the Code of Civil Procedure being considered (particularly rules on dismissal and res judicata). The court listed this case among several authorities relied on by counsel but stated it need not enter into detailed consideration of them for its disposition.
Naurang Ram Sahu v. Bakhori Mandur Cited among authorities relevant to procedural rules under the Code of Civil Procedure. Listed among cases cited at the Bar; the court did not undertake a detailed analysis of its ratio in this opinion.
Valliammai Nadathi v. Aseervada Nadar Cited among authorities on procedural points under the Code. Cited but not analyzed in detail in the present opinion; included in the list of authorities considered by counsel and the bench.
Firm of Harchand Rai Anand Ram v. Raja Ram Bahadur Singh Cited among authorities on procedural questions under the Code. Included in the list of authorities; the court indicated it need not enter detailed consideration of these authorities for the present decision.

Court's Reasoning and Analysis

The court's analysis proceeds in three main parts corresponding to the principal grounds relied upon by the lower courts.

1. Consideration and Requirement to Prove Family Necessity

The trial court had found that the consideration for the 1914 mortgage bond was an antecedent debt (described as a "hath chitta") arising from a prior loan for which a suit was instituted in 1913 and which led to a compromise that a mortgage bond be executed. On that basis the appellate court had required proof of family necessity; the present court examined that conclusion.

The present court held that because the pleadings and the trial court's findings show the mortgage consideration to be an antecedent debt of the father, the plaintiff was not required to prove family necessity or benefit to the sons of the executant. The court characterized the issue as a legal point based on pleadings and findings rather than a matter requiring further evidence, and overruled the lower courts' contrary view. The court explicitly accepted the appellant's contention on this point.

2. Representation of Omitted Minor and Competency of Parties on Record

The court acknowledged the general rule (as stated in Girwar Narain Mahton) that a plaintiff must bring every person interested in the mortgage or equity of redemption on the record. But it reasoned that where, on the face of the record, there is sufficient representation of the joint family, inadvertent omission of a member (here the minor Shibnath) does not defeat the suit.

The court noted that the plaintiff had impleaded Mahadeo Lal (in whose name the property appears to have been purchased) and "almost all" the members of his family, asserting they were a joint family. The omission of the minor was described as inadvertent. The defendants' written statement did not disclose the omitted minor nor deny that Mahadeo or Jagamath (the minor's father) properly represented him. The court therefore found that Shibnath was properly represented and relied on the view in Jag Sah v. Ram Chandra Prasad to hold that Mahadeo's capacity to represent the family in purchase also made him competent to represent them in the present litigation regarding the same property. The court overruled the lower court on this point.

3. Validity and Effect of the Prior Order Dated 6 June 1916 (Res Judicata Question)

The court closely analyzed the prior order quoted in the record:

“Up to date the Plaintiff has filed no talbana and no processes as ordered. To day also Plaintiff takes no steps. So I order the suit be dismissed for the Plaintiffs default.”

The court observed procedural facts: the earlier suit had been brought against major defendants who had already appeared and filed written statements; issues had been settled on 15 March 1916; the 4 May date had been fixed for disposal; on 22 March the plaintiff sought to add new defendants, some minors, and was ordered to file talbana and process fees to serve proposed guardians. The talbana and process fees were not filed, and that omission was the immediate cause of the order of dismissal for default on 6 June.

The court reasoned that because the original defendants had appeared and were present on 6 June, the dismissal could not have been under O. IX, R. 3 (which applies when neither party appears). Instead, the order must be viewed against O. IX, R. 8 (dismissal when the plaintiff fails to prosecute and defendants appear). If the 6 June order were a valid order under O. IX, R. 8 then R. 9 would preclude the plaintiff from bringing a fresh suit.

The court then examined the procedural correctness of treating the 6 June default as falling within O. IX, R. 8. It found the true character of the default related to the plaintiff's failure to take steps required for adding minor defendants (to obtain appointment of guardians), and the appropriate provision to address that default was O. XVII, R. 3 (which allows the court, where a party granted time fails to perform acts necessary for the further progress of the suit, to proceed to decide the suit forthwith). Under R. 3 the court should have proceeded to decide the suit "forthwith" by fixing a date for disposal and making clear that the suit would be taken up for disposal. The order sheet, however, did not intimate that the case was to be taken up for disposal forthwith as required by R. 3.

Therefore, the court concluded, the dismissal on 6 June was not a valid order under O. IX, R. 8 (and accordingly not a valid decree that could operate as res judicata under R. 9). The court held the 6 June order to be without jurisdiction for the purposes relied upon by the lower appellate court.

Relief, Directions and Interest Calculations

On the basis of the foregoing reasoning, the court held that the plaintiff was entitled to a mortgage decree against all defendants, including the subsequent purchaser Mahadeo Lal and his family members, who are bound to pay off the antecedent incumbrance. The court ordered preparation of a mortgage decree in terms of the bond and specified interest directions: interest as stipulated in the bond up to the day of grace (fixed at six months from the date of the present decree), and thereafter interest at 6% per annum until realization. If the sum due, calculated accordingly, is not paid on or before the day of grace, the plaintiff will be entitled to sell the property. The appeal was decreed with costs throughout.

Holding and Implications

Final Holding: The appeal is allowed; the decision of the lower Appellate Court is set aside and the plaintiff is entitled to a mortgage decree in terms of the mortgage bond.

Direct consequences and directions (as stated by the court):

  • A mortgage decree in the terms of the bond is to be prepared.
  • Interest will run as follows: interest as per the bond up to the day of grace (fixed at six months from the date of the decree); thereafter interest at 6% per annum until realization.
  • If the sum due as so calculated is not paid on or before the day of grace, the plaintiff is entitled to sell the property.
  • The appeal is allowed with costs throughout.

Broader implication noted in the opinion: the court overruled the lower courts' view on the three specific grounds (necessity/benefit requirement where consideration is antecedent debt; adequacy of representation where a minor was omitted; and the operative effect of the prior 6 June dismissal). The opinion does not purport to establish any broader, novel precedent beyond the application and reconciliation of procedural rules in the particular facts of this case.

This summary is confined strictly to the matters and statements appearing in the provided opinion and does not add or infer facts or law beyond that text.

Show full summary ...

    Sheikh Abdul Rahman v. Shib Lal Sahu

    Jwala Prasad, A.C.J:— This appeal arises out of an action to enforce a mortgage, dated the 11th August 1914. The mortgage bond executed by Shib Lal, Defendant No. 1, and Mahabir, father of defendant No. 2. Ramchandra, Defendant No. 4 is the son of Defendant No. 1. Defendant No. 3, Mahadeo Lal, is a subsequent purchaser of the equity of redemption in execution of a decree, Defendants Nos. 5, 6, 7 and 8 are members of his family. One member of the family Shibnath, son of Jagannath, Defendant No. 6 is not on the record. The Courts below passed only a personal decree against the Defendants Nos. 1 and 2. They dismissed the suit against Ram Chandra, son of Defendant No. 1, on the ground that legal necessity for the loan or benefit to him was not proved. The suit has also been dismissed as against subsequent purchasers, Defendants second and third parties, upon the ground that the order of the Court in the previous suit brought by the Plaintiff No. 892 of 1915, dated the 6th June 1916 operates as res judicata upon the points raised in the present case. Another reason given by the Court below for refusing a mortgage decree is that Shibnath, grandson of the subsequent purchaser Mahadeo, is not on the record and consequently in his absence a mortgage decree cannot be passed. On behalf of the appellant all these grounds upon which his claim for a mortgage decree have been dismissed have been challenged.

    2. As regards the view of the Court below as to there being no proof as to the benefit from the loan or family necessity reference may be made to the allegations in the plaint that the mortgage in question was executed in 1914 to pay off a prior debt of the executant of the bond for which a suit had been already brought and which was settled by compromise between the parties that a mortgage bond be executed.

    3. That prior loan was certainly of a much anterior date because the suit to recover the same was instituted in the year 1913. Dealing with the issue as to consideration for the bond the trial Court held that the consideration was a hath chitta for which the previous suit in 1913 was brought. Therefore upon the pleadings and upon the findings of the trial Court it is obvious that the consideration of the mortgage bond in question was an antecedent debt of the father and therefore there was no obligation on the part of the plaintiff to prove family necessity or benefit to the minor for the loan. No doubt no argument was raised in the Court below as against the view of the trial Court that the plaintiff was not entitled to the mortgage bond inasmuch as the debt was not proved to have been beneficial to the family nor for family necessity but the point does not require any consideration of evidence on the record. It is based entirely on the finding of the trial Court-and is a purely legal point and therefore it is open to the Appellant to dispute the view taken by the Courts below and it is also competent to this Court to hold upon the pleadings and the findings of the trial Court that the plaintiff is not required to show legal necessity for the loan or benefit to the sons of the executant. All the family members besides the executant are bound to pay the loan which was contracted to pay of the antecedent debts of the executants. The view taken by the Court below on this point is overruled and the contention of the learned Vakil on behalf of the Appellant therefore prevails.

    4. The second ground of dismissal of the Plaintiff's claim to have a mortgage decree by the Court below appears also to be erroneous. No doubt the Plaintiff in a mortgage suit is bound to bring every person interested in the mortgage or in the equity of redemption upon the record and in this respect the view taken in the case of Girwar Narain Mahton v. Musammat Makbunessa(1) is right but when upon the face of the record it in obvious that there was sufficient representation of the members of the joint family although all are not on the record, the Plaintiff's suit cannot fail. In the present case the Plaintiff impleaded not only Mahadeo Lal in whose name the property appears to have been purchased but also almost all the members of his family with a clear assertion that they were all members of a joint family. It was through inadvertence or on account of some accidental omission that the name of one of the members of the family, Shibnath, the grandson of Mahadeo Lal, was omitted. The defendants in their written statement did not disclose the name of that minor son of Jagamath who is said to have been omitted from the record nor was there any denial that Mahadeo Lal or Jagamath, the father of the minor, did not properly represent the minor in the suit. There was therefore a proper representation of Shibnath in the present case. Again the property was purchased in the name of Mahadeo and if he was competent to represent the entire family in the transaction of the purchase there is no reason why he should not be held to be competent to represent the other members in the present litigation in respect of the same property. This is in full accordance with the view taken by this Court in Jag Sah v. Ram Chandra Prasad(2). The view taken by the Court below upon this point also is overruled.

    5. There remains the crucial point in the case upon which both parties have addressed us at great length. I have carefully considered the full and learned argument on both sides and the rules in the Code of Civil Procedure on this point and the authorities cited at the Bar. These are;—Balmukand Marwari v. Lachmi Narain Marwari(3), Naurang Ram Sahu v. Bakhori Mandur(4), Valliammai Nadathi v. Aseervada Nadar(5) and Firm of Harchand Rai Anand Ram v. Raja Ram Bahadur Singh(6).

    6. I need not enter into a detailed consider ??? a of these authorities for in some of ??? myself was a party to the judgment and still adhere to the view taken by me in those cases. The order of the Court in the previous suit relied upon by the lower Appellate Court and the Respondents in the present appeal is as observed above of the 6th June 1916 and reads as follows:—

    “Up to date the Plaintiff has filed no talbana and no processes as ordered. To day also Plaintiff takes no steps. So I order the suit be dismissed for the Plaintiffs default.”

    7. That suit was originally brought against the major defendants who had already appeared in the case and filed their written statement. On the 15th March 1916 issues were settled and the 4th May was fixed for disposal. Subsequently on the 22nd March the plaintiff applied to add new defendants, some of whom were minors. He was accordingly ordered to file talbana and process fees in order to have the notice served upon the proposed guardian of the minor Defendants. This talbana and process fee was not filed, which has been referred to in the order in question and which caused the default of the Plaintiff. There is no doubt therefore that the original Defendants had already entered appearance in the case and upon the findings of the Court below they were also present on the 6th June 1916 when the order of dismissal was passed. Therefore the order of dismissal could not have been under O. IX, R. 3 of the CPC which is to be applied only when neither party appears. The order must therefore have been under O. IX, R. 8, inasmuch as the Defendants had entered appearance and were also present upon the date when the suit was dismissed.

    8. The question then is whether this is a valid order under O. IX, R. 8. If it is a valid order under that rule then the present suit is surely barred by R. 9 which clearly lays down that the plaintiff when his suit is dismissed under R. 8, shall be precluded from bringing a fresh suit. Therefore the contention of Mr. Lachmi Narain Singh that an order of dismissal for default is not a decree within the definition of the term in section 2, Cl. 2 of the Code does not seem to be of any effect. If on the other hand the order of the Court of the 6th June does not come under O. IX, R. 8 then the Plaintiff's present suit cannot be barred by any provision in the Code and the order will be without any jurisdiction. Consequently the principle of res judicata also will not apply inasmuch as the Plaintiff was not bound to have such an order set aside either by appeal or by review or in any other way. Much has been argued at the Bar as to the real meaning and scope of the word “hearing” used in the different provisions of the Code of Civil Procedure but a careful examination of the rules on the subject will leave no manner of doubt that this is purely a question of academic interest. The word “hearing” has not been defined in the Code but it is obvious that it is used in different rules with a view to state the different purposes for which a date for hearing of the suit is fixed. Now in O. IX, R. 1, read with R. 3, it would appear that after the institution of the suit when the summons is issued upon the Defendants calling upon them to appear upon a particular date and that date is the first hearing of the suit and if the parties fail to appear when the suit is called on for hearing on that date the Plaintiff's suit is dismissed for default. Various steps have to be taken by the parties in a suit in order that it may be ready for final hearing which means the examination of witnesses, the tendering of documents, and the hearing of arguments. At the intermediate stage in order to enable or compel the parties to take necessary steps in the prosecution of the case the Court may fix dates for some particular action to be taken. These dates are dates for hearing of that particular matter which is specified in the order of the Court.

    9. In the present case the Plaintiff on a previous date wanted to summon his witnesses but this was put off till the final date for bearing, meaning the examination of witnesses, was fixed. The same thing happened with steps taken up by the appearing defendants for the production of their evidence. No doubt on the 16th March the Court had fixed the 4th May for disposal but in view of the application made by the Plaintiff in the meantime on the 22nd March the case could not be taken up for disposal on that date but an order was passed fixing a date for the appointment of a guardian for the proposed new defendants who were minors. The 6th June was specially fixed for that purpose and the hearing on the 6th June was for the appointment of a guardian of the minor Defendants and it was not for the disposal of the case. The Plaintiff did not take the necessary steps for the appointment of the guardian on that date and consequently there was a default on his part on the 6th June. That default of the Plaintiff had to be dealt with under R. 3 of O. XVII, of the Code which says that “where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.” The plaintiff having defaulted the Court should have proceeded to decide the suit forthwith. In order to do that in the present case it was incumbent upon the Court to fix a date for the disposal of the suit inasmuch as the parties and particularly the plaintiff who suffered by the order of the Court of the 6th June did not know that the case would be taken up for hearing as soon as there was a default in his not taking the necessary steps for the appointment of a guardian. The Court in the order sheet does not even intimate that the case was to be taken up for disposal forthwith as is required by R. 3. The case could not therefore be disposed of on that date in the way the Court did, viz., by dismissing the entire suit. The plaintiff was entitled to have his case decided as against the appearing Defendants upon a chance being to give to him to adduce his evidence which was postponed on account of the Court's order that this should be put off till the final date for hearing was fixed. In this view the order of the Court of the 6th June appears to me to be without any jurisdiction and if that was so there was no valid decree which could operate as res judicata so as to bar the present suit of the plaintiff based upon the mortgage bond in question. The result is that the view of the Court below refusing to give a mortgage decree upon the ground that the order of the 6th June operates as res judicata is set aside. I hold that the Plaintiff is entitled to a mortgage decree against all the Defendants and the subsequent purchaser Mahadeo Lal and the family members are certainly bound to pay off the prior incumbrance of the Plaintiff. The result is that the decision of the lower Appellate Court is set aside and in lieu thereof it is ordered that a mortgage decree in terms of the bond be prepared carrying interest as stipulated in the bond up to the day of grace which is fixed as six months from this date and thereafter interest will run at the rate of 6 per cent per annum till the date of realisation. If the sum due under the mortgage calculated as above, is not paid on or before the days of grace the Plaintiff will be entitled to sell the property. The appeal is decreed with costs throughout.

    10. Das, J.:— I agree.

    11. Appeal allowed.

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    Comments

    Sheikh Abdul Rahman v. Shib Lal Sahu
    (Jul 18, 1921)