Judgment

T. L. VENKATARAMA AYYAR, J. : This is an appeal against an order of the High Court of Calcutta dated August 6, 1956, rejecting the application of the appellant to be brought on records as appellant in Appeal No. 152 of 1955 pending before it.

2. The second respondent, Sudhir Kumar Mitter, was the owner of two houses, No. 86/1, Cornwallis Street and No. 7-C, Kirti Mitter Lane, Calcutta. On May 19 1934, :he executed a mortgage for Rs. 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 preliminary 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 Rs. 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. The rule then provides that

"if such application for drawing up a decree or order is not made within the time aforesaid, the decree or order shall not be drawn up except under order of Court or a Judge to be obtained, unless otherwise ordered, by a petition ex parte."

The importance of this provision is that until a decree is drawn up as mentioned therein, no certified copy thereof would be issued to the party and without such a certified copy, no execution proceedings could be taken.

3. The first respondent who had acted with such alacrity and speed in putting her mortgage in suit and obtaining a decree took no steps whatsoever to have the decree drawn up, for nearly 18 years. On May 12, 1952, the second respondent sold both the houses to the appellant herein for a sum of Rs. 60,000 which was, it is stated, utilised largely for discharging prior mortgages on which decrees had been obtained and execution proceedings taken. The deed of sale recites that the properties were sold free of all encumbrances. The first respondent who had so far taken no steps to have the decree drawn up now bestirred herself, and on February 17, 1954 obtained an ex parte order under R. 27 aforesaid, grating her leave to drew up and complete the decree. That having been done pursuant to the order, she filed on April 29, 1954 the final decree, and commenced processings for sale of the mortgaged properties.

4. Coming to know of this, the second respondent appeared before the Registrar, and raised the 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 (S) AIR 1955 Cal 484 (A). Against this judgment, the second respondent preferred Appeal No. 152 of 1955, and that is still pending.

5. We now come to the application, out of which the present appeal arises. On July 25, 1956 the appellant applied to be brought on record as appellant in Appeal No. 152 of 1955. The allegations in support of the petition were that she had purchased the properties from the second respondent on May 12, 1952 free of all encumbrances, that the execution proceedings started by the first respondent were not maintainable as the decree had become time-barred, that the second respondent, Sudhir Kumar Mitter, had been conducting proceedings in opposition to the execution sale only at her instance and for her benefit, that he had filed Appeal No. 152 of 1955 also on her behalf, that latterly he had entered into a collusive arrangement with the first respondent with a view to defeat her rig