Judgment

CHANDRACHUD, J. :- This is a plaintiff s appeal on a certificate granted by the High Court of Bombay, Nagpur Bench, under Article 133 (1)(a) of the Constitution.

2. On March 24, 1953, defendant 1 executed on behalf of himself and his minor son defendant 2, a deed of mortgage in favour of the plaintiff. Defendant 3 is also a son of defendant 1 but he was born, after the mortgage deed, on September 30, 1955. On January 11, 1956 a registered deed of partition was executed amongst the defendants under which the mortgaged property was allotted to the share of defendants 2 and 3.

3. On September 1, 1956, the mortgagee filed Civil Suit No. 3-A of 1956 to enforce the mortgage. On September 20, 1958, the trial Court passed a preliminary decree for sale of defendant 1 s interest in the mortgaged property. It held that part of the consideration for the mortgage was not supported by legal necessity and the balance of the debt incurred on the mortgage was tainted with immorality. Though, therefore, defendant 1 had executed the mortgage as a manager of the joint Hindu family consisting of himself and defendant 2, the debt was held not binding on the one-half share of defendant 2 in the mortgaged property. On the issue relating to the genuiness of the partition effected by defendant 1 between himself and his sons, the trial Court recorded a finding that it was a sham and colourable transaction and its object was to delay or defeat the creditors.

4. Being aggrieved by the decree directing the sale of half the mortgaged property only, the plaintiff filed First Appeal No. 40 of 1959 in the High Court of Bombay. Though the suit was dismissed as against defendants 2 and 3, they also filed an appeal in the High Court to challenge the finding of the trial court that the deed of partition was a sham and colourable transaction. That was First Appeal No. 72 of 1959.

5. During the pendency of these two appeals, the preliminary decree was made final by the trial court on October 23, 1958. On March 2, 1960, the plaintiff purchased, with the permission of the court, a joint half share in the mortgaged property in full satisfaction of his decree. On September 21, 1960 the auction sale was confirmed and on November 25, 1960 the plaintiff was put in joint possession of the property.

6. On March 15, 1966 the appeals, filed by the plaintiff and by defendants 2 and 3 came up for hearing before a Division Bench consisting of Abhyankar and Deshmukh JJ. The hearing of the appeals was adjourned from time to time and while the appeals were part-heard, defendants 2 and 3 applied on August 2, 1966 for amendment of their Memorandum of Appeal in First Appeal No. 72 of 1959. By the proposed amendment they sought leave of the High Court to challenge the preliminary decree passed by the trial court. The plaintiff opposed the amendment and applied that she did not desire to prosecute First Appeal No. 40 of 1959 filed by her.

7. The High Court did not pass any orders either on the application for amendment made by defendants 2 and 3 or on the purshis of the plaintiff asking that her appeal be dismissed for non-prosecution. On August 24, 1966 the High Court adjourned the hearing of the appeals for three months to enable defendants to pay the amount due under the preliminary decree. On November 24, 1966 defendants 2 and 3 deposited Rs. 12,500/- and applied for an extension of two months for paying the balance. The extension was granted by the High Court and on January 25, 1967, defendants 2 and 3 deposited a further sum of Rs. 25,000/- towards the satisfaction of the preliminary decree.

8. On February 14, 1968, another Division Bench of the High Court (Tambe and Badkas, JJ.), allowed the application of defendants 2 and 3 for amendment of their Memorandum of Appeal in First Appeal No. 72 of 1959. On an application made by their counsel, the High Court granted to those defendants time till February 23, 1968, to pay the deficit court-fees, which they did. The High Court then too