The Judgment of the Court was delivered by
Sen, J.:— This order will also govern the disposal of Miscellaneous Appeal No. 303 of 1941.
2. Mt. Krishnabai and others the judgment-debtors 1-8, have filed this revision application and Miscellaneous Appeal No. 303 of 1941, to set aside the order, dated 19th July 1941, passed by the Court of the First Additional District Judge, Nagpur, in Civil Suit No. 5 of 1932. The relevant facts which have led to these proceedings are briefly these:
Ramchandra Gopal Bhide, his wife Mt. Jankibai and their sons Narayan and Madhao obtained on 23rd December 1933, a preliminary decree for sale in Civil Suit No. 5 of 1932, against Bapuji, husband of Mt. Krishnabai, and the legal representatives of Tanbaji and Laxman, on the basis of the mortgage, dated 10th July 1929, executed by Bapuji and his two brothers Tanbaji and Laxman. The decree was for Rs. 69,455-0-10 with interest at 6 per cent, per annum till realisation. The date fixed for payment was 23rd June 1934. The amount now due is over Rs. 1,10,000. The property mortgaged was 16 annas of mauza Dhole Mohagaon, pargana Kelzar, Group Kaodas, with all proprietary rights excepting the cultivating rights in the sir, together with the malguzari filed wada and two kothas. One of the terms of the decree was that if the money realised by the sale of the mortgaged property was not sufficient for payment in full of the amount payable to the plaintiffs, the plaintiffs were at liberty to apply for a personal decree against the defendants for the amount of the balance. So far as defendants 2-8 were concerned, their liability was restricted to their share in the family estate which were the assets of their father and grandfather.
3. Before the preliminary decree was passed the plaintiffs applied on 30th November 1932, for an order calling upon the judgment-debtors to furnish security to the extent of Rs. 35,000 and in case of their failure, for appointment of a Receiver, for attachment of the other property of the judgment-debtors and for an order restraining them from alienating other property, as in their estimate, the value of the property was about Rs. 35,000, and that it would be necessary for the plaintiffs to enforce a personal decree against the mortgagors for the realisation of the balance of the decretal amount. The defendants had alienated some portion of their property and the plaintiffs apprehended that the judgment-debtors might alienate other property which will have the effect of defeating or delaying the realisation of the full decretal amount from them. Nothing was done on this application as the proceedings were re-opened on an application of Shankar, one of the defendants, who had attained majority, and on account of the fact that legal representatives had to be brought on the record in place of the deceased Laxman, one of the mortgagors, who was a defendant in the case.
4. After the decree was passed on 23rd December 1933, the decree-holders renewed their application on 5th February 1934, for calling on the judgment-debtors to furnish security for rupees 35,000 and on their failure to do so, for appointment of a Receiver of the mortgaged property for collecting rents and profits during the pendency of the suit, and for an injunction restraining the defendants from alienating or otherwise disposing of their immovable property until Satisfaction, and in case of their failure to furnish security, the property of the judgment-debtors was to be attached before judgment. This was the subject-matter of the inquiry. The judgment-debtors took time for a compromise and the proceedings were protracted from 5th February 1934 to 18th December 1936.
5. In the meantime, Dr. Shankar Pandurang Gogte in execution of his decree, dated 14th November 1932, in Civil Suit No. 35 of 1932, against Ramchandra Bhide and others, attached on 22nd February 1934, under O. 21, R. 53 of the CPC, the preliminary decree for sale, dated 23rd December 1933, which Ramchandra Bhide and others had obtained against the judgment-debtors. No objection was filed to this attachment. On 11th January 1937, Pr. Shankar Pandurang Gogte, the attaching creditor, filed an application purporting to be under O. 21, R. 53 of the CPC, for permission to move the Court for making the decree final in Civil Suit No. 5 of 1932. On 22nd January 1937, the Court of the Additional District Judge passed the following order:
“Plaintiff 1 present. Defendants absent. Messrs Bhave and Jamdar for Dr. Gogte. Dr. Gogte has filed an application stating that he has attached the decree. Plaintiff 1 admits that the decree has been attached.
The application that is now under inquiry is for an order that defendants should furnish security for Rs. 35,000 or in the alternative, for an order appointing Receiver of the mortgaged property and the issue of prohibitory order to defendants. As the decree has been attached the plaintiffs have no right to maintain this application.
An application for the passing of a final decree has not yet been filed. The attaching creditor may file an application. Papers filed.”
6. After obtaining necessary permission from the Court, the attaching-creditor filed an application on 6th March 1937, for making the decree final in Civil Suit No. 5 of 1932. On 22nd October 1937, Ramchandra Bhide, the decree-holder in Civil Suit No. 5 of 1932, applied for stay of proceedings as he had applied for reduction of interest under the Reduction of Interest Act and for grant of instalments under the Money-Lenders Act. In that application he stated that the attachment effected by the attaching creditor was not in accordance with law, and that he was not entitled to execute the attached decree. On 12th November 1937, the attaching, creditor replied by stating that the filing of an application by Ramchandra Bhide, for reduction of interest and for grant of instalments did not affect the right of the attaching creditor to proceed to make the decree final and that the proceedings were in their interests also. No progress was made in the civil Court on account of the pendency of proceedings before the Debt Conciliation Board and afterwards before the Debt Relief Court.-After the termination of these proceedings statements were recorded. On 19th July 1941, the Court of the Additional District Judge held that the application of the attaching creditor for making the decree final in Civil Suit No. 5 of 1932, was maintainable. It is against this order that the judgment-debtors have filed this revision application and the miscellaneous appeal. They made Dr. Shankar Pandurang Gogte, the attaching creditor, Ramchandra Bhide and others, plaintiffs-mortgagees-decree-holders, Manohar Bhide and Gajanan Bhide, sons of Ramchandra Bhide, who were mortgagees, but who had no interest by reason of the decree in Civil Suit No. 2 of 1932, dated 12th July 1932, and Madhao Narayan Ghatate, another attaching creditor parties to these proceedings. Dr. Shankar Pandurang Gogte died on 28th July 1942, and on his death his widow Mt. Parvatibai and his three sons, Daji, Kesheo and Bai, have been brought on the record, as his legal representatives. The name of Gajanan Bhide was removed as he had died in June 1935 long before the filing of the revision application.
7. Mr. Bobde, counsel for the representatives of the attaching creditor, raised two preliminary objections; viz., that the appeal was incompetent and the revision application was not maintainable as there were no grounds for interference in revision.
8. The order, dated 22nd January 1937, was passed by the Court of the Additional District Judge in the suit. It was not passed in execution. An application under O. 34, R. 5(2) of the CPC, for making the decree final is an application in the suit and not an application in execution: see, 15 N.L.R 36.1 The question between the parties is not one regarding execution, satisfaction or discharge of the decree. The question is not one under Section 47 of the CPC, and the decision is not a decree. The question is whether an attaching creditor who has attached the preliminary decree, can apply in the suit to make the decree final. This is an interlocutory order. It does not amount to a decree. It is not one of the orders mentioned in Section 104 or O. 43 of the CPC, against which an appeal has been provided. The right of appeal is a creation of the statute and it does not exist apart from it. No such right has been conferred under the Code of Civil Procedure and the order is not appealable. We accordingly accept the contention and hold that the appeal against the order is incompetent. We accordingly dismiss Miscellaneous Appeal No. 303 of 1941.
9. As regards the competency of the revision application the objection of the judgment-debtors is that the attaching creditor of the preliminary decree in Civil Suit No. 5 of 1932 was not entitled to file an application to make the decree final and the lower Court had no jurisdiction to entertain his application. This involves the question of jurisdiction and the application is maintainable under Section 115 of the CPC. We overrule the contention of the attaching creditor as regards the competency of the revision application.
10. Dr. Kathalay, counsel for the judgment-debtors, contended that the attaching creditor of a preliminary decree for sale is not entitled to file an application to make the decree final. This has been contested by Mr. Bobde, counsel for the attaching creditor, who maintained that such an application was maintainable, and that in the alternative, Ramchandra Bhide and others (decree-holders) be transposed from the array of non-applicants and be made applicants along with the attaching creditor. The learned counsel for the decree-holders Ramchandra Bhide and others and Mr. Chati, counsel for Madhao Narayan Ghatate, another attaching creditor, supported the contention of Mr. Bobde.
11. Mr. Kulkarni, counsel for the decree-holder, stated that after attachment, the judgment debtors and the decree-holders entered into a compromise under which the mortgagees were to get 14 annas in full ownership and the remaining 2 annas were to be with the mortgagors free from mortgage liability. The compromise was reduced to writing, signed by the parties but not registered. In accordance with the terms of the compromise the parties were in possession of their respective shares. The decree-holders were willing to abide by the terms of the compromise and that if the judgment-debtors affirmed the compromise the decree-holders were willing to pay off the entire decretal amount due to Dr. Shankar Pandurang Gogte, the deceased and Madhao Narayan Ghatate, attaching creditors. Dr. Kathalay, for the judgment-debtors, admitted that there was a compromise but stated that it fell through.
12. The points for decision are:
(i) whether an attaching creditor of a preliminary decree for sale on a mortgage is entitled in law to file an application to make the decree final; and
(ii) whether the decree-holders can be transposed from the array of non-applicants in the lower Court and made applicants along with Dr. Shankar Pandurang Gogte, the attaching-creditor, for making the decree final.
13. As regards the first point, the learned counsel for the judgment-debtors relied on three cases in support of his contention. They are these: A.I.R 1936 All. 857,2 I.L.R (1937) All. 823,3 13 Luck. 237.4
14. These cases undoubtedly support his contention. A contrary view has been taken by the lower Court. We have to decide which view is correct.
15. Dr. Gogte was entitled to execute his decree against the property of the Bhides his judgment-debtors. One of their property, was the preliminary decree for sale, dated 23rd December 1933, which they had obtained in Civil Suit No. 5 of 1932 against their judgment-debtors. Ordinarily, all property is liable to attachment and sale. Section 60 of the CPC, enumerates property which is liable to attachment and sale, and in the proviso are stated the particulars of property which are not liable to such attachment or sale. Among the properties mentioned as liable to attachment and sale are lands, houses, or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds, or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned. All other saleable property, moveable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit. Decrees are not specifically mentioned, but they will fall under
‘all other saleable property belonging to the judgment-debtor, or over which, or the profits of which he has a disposing power which he may exercise for his own benefit.’
16. A simple mortgage has got a dual aspect. It is a debt. It is also a transfer of interest in immovable property for securing a payment of the debt. Civil Suit No. 5 of 1932 was for enforcement of the simple mortgage, dated 10th July 1929. In a suit on a simple mortgage there are two decrees (i) a preliminary decree for sale and (ii) final decree for sale. Under the preliminary decree for sale, the amount payable by the mortgagor to the mortgagee is determined and a date is fixed for payment and if the amount is not paid within the period stipulated, the mortgaged property is liable to sale. After the date for payment has expired, the decree-holder is entitled to apply for a final decree for sale, if the decretal amount is not paid within the time fixed. On such application under O. 34, R. 5(3), the Court passes a final decree directing that the mortgaged property, or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in sub-r. (1) of R. 4. The preliminary decree for sale is a decree for sale in enforcement of a mortgage. The decree as such is not executable. Further steps have to be taken under O. 34, R. 5(3), and after a final decree for sale is passed, the decree becomes executable. The rights of the parties in respect of the recovery of the debt are determined by the terms of the mortgage. After a suit is filed for enforcement of a mortgage and a decree is passed, it passes from the domain of a contract and the rights of the parties are henceforth regulated not by the terms of the original mortgage but by the terms of the decree.
17. Dr. Gogte attached this decree under O. 21, R. 53 of the CPC. Order 21, Rr. 41-57 deal with the attachment of property. Rules 44-54 enumerate different modes of attachment regarding different kinds of property. Rule 46(1)(a) deals with attachment of debt not secured by a negotiable instrument. Rule 53 deals with attachment of decrees. In view of the classification of different kinds of property and their distinctive modes of attachment, it may be stated that the provision regarding attachment of decrees in R. 53 is exhaustive and the decrees have to be attached in the manner laid down in that rule and not in the manner prescribed in R. 46. An analysis of Rule 53 would disclose that decrees have been classified under two distinct categories, viz., (i) a decree for payment of money or for sale in enforcement of a mortgage or charge and (ii) a decree other than a decree of a nature referred to above. If it is a decree for payment of money or for sale in enforcement of a mortgage or charge, the attaching creditor in execution of his decree has to execute the attached decree, and is not entitled to sell it. If, however, the decree is not of the nature specified above, then the procedure under O. 21, R. 53(4) is to be followed. The mode of execution of a decree after attachment of such a decree has not been specified in sub-r. (4). Such decrees will be liable to sale under Section 60 and O. 21, R. 64 of the CPC.
18. The decrees are liable to attachment. The question is regarding the procedure to be followed after the attachment of an attached decree. The procedure to be followed will depend upon the nature of the decree attached. If the decree is for payment of money or for sale in enforcement of a mortgage, then the decree cannot be sold; it has to be executed. If, however, it is not of that nature, the attaching creditor has to sell the decree and realise the decretal amount in part payment or satisfaction of his decree.
19. Order 21, R. 53 deals with the mode in which the decrees are to be attached in execution proceedings. It contemplates an attachment and sale of all decrees other than those for the payment of money or for sale in enforcement of a mortgage or charge. In case of a decree for sale the only procedure laid down for its attachment and realization is that contained in O. 21, R. 53(1). Such a decree cannot be sold, but the decree itself is to be executed and the assets realized to be made available to the person entitled to attach the decree: see, 16 N.L.R 725 at p. 75. That was a case of a sale of a preliminary decree for foreclosure by a Court of Small Causes. The contention raised in that case was that it related to immovable property within O. 21, R. 54, and the Court of Small Causes had no jurisdiction to sell such a decree. It was held that a decree for foreclosure of immovable property is not immovable property and that it could be sold by a Court of Small Causes. The principle underlying is applicable to this case. The decree for sale is based on a mortgage-debt. After a decree has been obtained on the debt, it merges into a decree. The procedure for attachment of decrees under O. 21, R. 53 and the mode of its realization, as enacted in O. 21, R. 53 have to be followed and not that prescribed by O. 21, R. 46. Order 21, R. 53(1) refers to a decree for sale in enforcement of a mortgage. It is not restricted to a preliminary decree for sale. The words used being sufficiently comprehensive it will include both the preliminary and final decree for sale. After the preliminary decree steps have to be taken by the plaintiff-mortgagee to make the decree final and after it has been made final, the attaching creditor is entitled to execute the attached decree. His judgment-debtor is also entitled to execute his decree with the consent of the decree-holder expressed in writing or with the permission of the attaching Court. The Court has to apply the net proceeds in satisfaction of the decree sought to be executed. Under O. 21, R. 53(3) the holder of a decree sought to be executed by the attachment of another decree of the nature specified in sub-r. (1) is deemed to be the representative of the holder of the attached decree and is entitled to execute such attached decree.
20. The point for decision is—Whether an attaching creditor can apply for making the preliminary decree for sale final. This will depend on the interpretation of O. 34, R. 5(3) of the CPC. It enacts that where payment in accordance with sub-r. (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in sub-r. (1) of R. 4. The expression ‘plaintiff’ is to be interpreted in a comprehensive sense. It will mean not merely the plaintiff who institutes a suit for enforcement of a mortgage, but will include his transferee. On the death of the original plaintiff his legal representative under O. 22, R. 3 of the CPC, is entitled to be substituted in his place and he will have the right to continue the suit including the right to full an application to make the decree absolute. In other cases of assignment, creation or devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be, continued by or against a person upon whom such interest has come or devolved. The application, dated 11th January 1937, of the attaching creditor purported to be under O. 21, R. 53 of the CPC. It was really an application under O. 22, R. 10, by the attaching creditor to obtain leave of the Court to continue the proceedings. The attaching creditor asked for the leave of the Court for filing an application to make the decree absolute. This was granted — (vide order-sheet, dated 22nd January 1937). After obtaining leave the attaching creditor filed an application on 6th March 1937, to make the decree final.
21. Section 146 of the CPC, is in these terms:
“Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.”
22. Bhides, the decree-holders had the right to apply to make the decree final. This could be done by an attaching creditor as he is a person who claims under the decree-holder. The attachment creates an interest in favour of the attaching creditor within the meaning of O. 22, R. 10, and that he can file an application under O. 34, R. 5(3) of the CPC, read with S. 146. We may refer to the judgment of Rowland, J. in 19 Pat. 935.6 The question in that case was whether a preliminary decree for accounts passed in a suit for dissolution of partnership and for partnership accounts, was attachable and whether the attaching creditor has to apply for execution of the decree, or for sale of the attached decree. The decision was that it is attachable but not saleable and that the attaching creditor is deemed to have obtained an interest entitling him to the benefit of R. 10, sub-r. (1), that is to say, he can by leave of the Court continue the suit as a person on whom the interest of the plaintiff has devolved. This has our respectful concurrence.
23. The conclusion deducible from the several provisions of the Code of Civil Procedure referred to above is that an attaching creditor of a preliminary decree for sale is entitled to apply to make the decree final.
24. We shall now consider the cases on the point: A.I.R 1936 All. 857. In execution of a money decree against Messrs Ramdeo Rang Lal, the Firm Ram Kumar, the decree-holder, obtained a preliminary decree for sale which Messrs Ramdeo Rang Lal had obtained against their judgment-debtor. The attaching creditor applied to make the decree final. This was rejected as not maintainable. The order was upheld in appeal by the High Court. The propositions deducible from the case are—(i) a preliminary decree for sale is not a decree for money or a decree for sale in enforcement of a mortgage within O. 21, R. 53; (ii) the attachment of a preliminary decree does not amount to an assignment, creation or devolution of interest within O. 22, R. 10 of the CPC, and (iii) an application for making the decree final can be made only by the plaintiff under O. 34, R. 5(3) of the CPC, and not by the attaching creditor. There is no discussion and no reasons have been given for the several propositions. We have already discussed the matter and we respectfully disagree with the propositions stated above. In our view there is no justification for excluding a preliminary decree for sale from O. 21, R. 53 of the CPC. The attachment creates an interest within O. 22, R. 10 and that an attaching creditor can apply under O. 34, R. 5(3) to make the decree final.
25. I.L.R (1937) All. 823. In execution of his decree, Johrimal attached a preliminary decree for sale which his judgment-debtor Md. Ismail had obtained. The question was whether the preliminary decree was attachable. The decision was in the affirmative. The propositions deducible from the case are—(i) a preliminary decree for sale is property within Section 60 of the CPC, (ii) such a decree can be attached in execution of a decree, and (iii) a preliminary decree for sale does not fall under O. 21, R. 53(1) of the CPC. The High Court set aside the order of the lower Court for preparation of a final decree and directed that the procedure laid down in O. 21, R. 64 be followed. We agree with the first two propositions but we dissent from the third proposition stated therein.
26. The last case is 13 Luck. 237. This case merely follows the decision in A.I.R 1936 All. 857. There is no independent examination of the provisions of the Code of Civil Procedure. No reasons have been given for coming to that conclusion.
27. As regards the second point we consider this a proper case in which Ramchandra Bhide and others, the decree-holders, who were non-applicants in the lower Court in the application of the attaching creditor to make the decree final, be transposed from the array of non-applicants and be made applicants along with Dr. Shankar Pandurang Gogte.
28. Ramchandra Bhide and others were entitled to apply to make the decree final. On 22nd January 1937, the lower Court granted permission to the attaching creditor to file an application to make the decree for sale final in Civil Suit No. 5 of 1932. Ramchandra Bhide and others, the decree-holders, had applied to the lower Court for calling upon their judgment-debtors to furnish security for Rs. 35,000 and in case of their failure, for an appointment of a Receiver and for attachment of their other property. The lower Court under a misapprehension thought that as the decree had been attached the plaintiff had no right to maintain that application. This by implication involved a decision the they had no right to apply for making the decree final. This was clearly wrong. We modify the order, dated 22nd January 1937, and hold that the decree-holders of the attached decree are entitled to apply for a final decree and to take all necessary steps to protect their interest. Under O. 21, R. 53, as amended by the rules of the High Court the attached decree can be executed by the holder of the decree sought to he executed or by his judgment-debtor with the consent of the said holder expressed in writing or with the permission of the attaching Court. There is thus no bar for a decree-holder to file an application in a suit including an application to make the decree final. The right of the holder of the attached decree to execute the decree is qualified but has not been altogether taken away. Both the attaching creditor and the decree-holders of the attached decree are interested in the realisation of the full amount due under the mortgage. They are entitled to take all steps to make the decree final and for executing the final decree for sale. The money to be reallied by the sale of the mortgaged property will go first towards the satisfaction of the decree sought to be executed and the balance will be available for the satisfaction of the decree-holders of the attached decree. The claim of the attaching creditor is about Rs. 14,000. The mortgaged property is admittedly more than Rs. 35,000. There will be sufficient amount left for the satisfaction of a part of the claim of the holders of the attached decree. Both are jointly interested and it is desirable that they should be applicants to protect their interests. The transposition has been opposed by the judgment-debtors on the ground that it will deprive them of the plea of limitation. Their argument is that the date fixed for payment was 23rd June 1934, and that the last date for the decree-holders of the attached decree to make the decree final was 23rd June 1937, and as the period has expired any application now made will be barred by limitation. If the transposition is allowed that will have the effect of depriving the judgment-debtors of their plea of limitation. There is no substance in this contention. Under O. 1, R. 10(2) a Court has got ample power to order transposition at any time. No question of limitation is involved where a party is transposed from the array of the defendants to that of the plaintiffs.
29. We invite a reference to the decision in 59 Cal. 80.7 At page 91 it is observed that:
“If there was a technical objection to this, the Court clearly had power at any stage of the proceedings to remedy the defect under O. 1, R. 10 of the CPC, by adding the pro forma defendants as co-plaintiffs with the appellant. Such a course should, in their Lordships' opinion, always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings.”
30. The plaintiff in that case was a zamindar who sued for a declaration of subsoil rights and for damages in respect of the removal of yellow ochre, at Rs. 46,800. The first Court gave a declaration in respect of the yellow ochre and passed a decree for damages for ¼th of the amount in the view that the plaintiff was one of four joint brothers. On appeal the decision was set aside and the suit dismissed. It was held by their Lordships of the Privy Council that the claim was not barred by limitation so far as the subsoil right regarding the yellow ochre was concerned and that the decree of the first Court was modified from Rs. 11,700 to Rs. 46,800. It is in that connexion that the observations quoted above were made. The brothers who were defendants in the case were entitled to a share and they were allowed to be transposed and the decree for full amount was passed in favour of the plaintiffs.
31. I.L.R (1939) Bom. 5038 arose out of a suit filed by one of the mortgagees to enforce an equitable mortgage, dated 30th September 1925, which was in favour of Cooverji Umersey & Co., which consisted of nine partners, namely, Cooverji Umersey, his father Umersey Katchra and seven others. In November 1926, seven partners retired. On 6th November 1926 one of the partners renounced his claim and agreed to execute a necessary document. On 17th November 1926 other six partners renounced their interest but the deed was not registered. The suit was filed by the father and the son to enforce an equitable mortgage. On the death of the father the son was allowed to continue the suit. The other partners who did not claim any interest were made defendants. The High Court held that as necessary parties were before the Court, the relief could be granted to the plaintiffs, even though the suit as originally framed was defective. This was affirmed by the Privy Council. At page 510 it is observed:
“Once all the parties are before the Court the Court can make the appropriate order and should give judgment in favour of all the persons interested whether they be joined as plaintiffs or defendants. Prima facie, therefore, the trial Court in the present case should have given judgment in favour of the eight of the original partners who survived, though some of there had been made defendants.”
32. Section 22 of the Limitation Act, is in these terms:
“(1) Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party. (2) Nothing in sub-s. (1) shall apply to a case where a party is added or substituted owing to an assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.”
33. Section 22(1) of the Limitation Act of 1908 is in identical terms with the provision of Section 22 of the Limitation Act of 1877. Under this Act there were two provisos. These provisos have now been embodied in S. 22(2) and the words “where a plaintiff is made a defendant or a defendant is made a plaintiff” have been added to the section. The words underlined (here italicised) did not appear in the old S. 22 of 1877. In view of the change in the law no question of limitation can possibly arise in case of transposition of parties.
34. The learned counsel for the judgment-debtors relied on the decision in 20 C.W.N 833.9 The case is also reported in 43 I.A 113. The decision arose out of a suit for declaration of a dissolution of a partnership and for accounts which was filed on 23rd October 1911. The partner died on 11th November 1904. Limitation under the Straits Settlements Ordinance, No. 6 of 1896 was three years from the date of dissolution. The question turned on the interpretation of S. 17 of the Ordinance which was in the same terms as Section 17 of the Limitation Act of 1877, viz.:
“When a person who would, if he were living, have a right to institute a suit to make an application dies before the right accrues, the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting or making such suit or application.”
35. On 7th March 1910, Letters of Administration from the Singapore Supreme Court were granted in favour of the widow. On 10th May 1912 probate was granted by the Madras High Court to one of the executors who derived his title and authority from the will of his testator and not from any grant of probate.
“The personal property of the testator including all rights of action, vests in him upon the testator's death, and the consequence is that he can institute an action in the character of executor before he proves the will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate but because the production of probate is the only way in which, by the rules of the Court, he is allowed to prove his title. An administrator, on the other hand, derives title solely under his grant, and cannot therefore institute an action as administrator before he gets his grant.”
36. In that view the suit was held barred by limitation. There was no case of transposition of parties in that case and the case was governed by the provisions of the Ordinance of 1896 which were in identical terms with S. 22 of the Act of 1877 and which did not contain any provision regarding transposition.
37. A reference may be made to 11 Pat. 616.10 At p. 623 it is observed:
“The Legislature has, by enacting sub-cl. (2) of Section 22 of the Limitation Act, recognized that if a person is a party to a suit, his change of position will not affect limitation; and it was to meet cases like these that it has been provided that if a party already on the record is transferred from the category of the defendant to that of the plaintiff or vice versa, provisions of cl. (1) will not apply; and I think, in a proper case the Court will be exercising a wise discretion if it allowed such transpositions in order to give relief to an aggrieved party. To disallow this on the ground given by the learned Judge will be defeating the very object which the Legislature had in view.”
38. These observations have our respectful concurrence. The same principle was applied in I.L.R (1937) Mad. 97011 at p. 978, A.I.R 1933 Pat. 239,12 3 Luck. 24113 and 10 Luck. 203.14
39. In view of the clear provision of Section 22(2) of the Limitation Act, no question of limitation arises in case of transposition of parties. The matter is clear beyond doubt and we did not call upon the learned counsel for the attaching creditor to reply to the arguments advanced by the learned counsel for the judgment-debtors. We hold that the attaching creditor of a preliminary decree for sale in enforcement of a mortgage was entitled to apply to make the decree final. We direct that the holders of the decree in Civil Suit No. S. of 1932 be transposed from the array of non-applicants and be made applicants along with Dr. Shankar Pandurang Gogte and the representatives of the attaching creditor, and the decree-holders will now proceed to take necessary steps to make the decree final and to execute the final decree when passed. The decree-holders would have applied to make the decree final but for the wrong order passed by the lower Court, dated 22nd January 1937. In view of the circumstances of this case we direct that the parties shall bear their costs as incurred. The application is dismissed.
40. Application dismissed.