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High Court Of Calcutta
A. N. Sen, Bimal Chandra Basak
KALIDAS PAL - Appellant
Versus
SRIPATI M.ROYCHOWDHURY - Respondent
Suit 3011 Of 1969
Decided On : 03/22/1978
CIVIL PROCEDURE CODE - ORDER 34, RULE 4 - MORTGAGE SUIT - DECREE UNDER CHAPTER 13A - APPLICABILITY - JURISDICTION - APPEALABILITY OF ORDER - SUBSTITUTION OF PARTIES - AMENDMENT OF DECREE.
Fact of the Case:
Plaintiff filed a mortgage suit for a decree under Order 34, Rule 4 of the Code of Civil Procedure. The mortgagor defendant entered appearance and filed a written statement. The puisne mortgagee defendant also entered appearance and filed a written statement. During the pendency of the suit, the mortgagor defendant was adjudicated insolvent. The District Judge of Hooghly was added as a party to the suit as the assignee of the mortgagor defendant. The plaintiff made an application for final judgment and decree under Chapter 13A of the Rules of the Original Side of the Calcutta High Court against the District Judge as the assignee of the mortgagor defendant. The trial Judge passed a decree under Chapter 13A against the District Judge. The mortgagor defendant was subsequently discharged from insolvency. The plaintiff died and his son applied for substitution and amendment of the decree to make it binding on the mortgagor defendant. The trial Judge allowed the application and directed substitution and amendment of the decree.
Finding of the Court:
The Court held that Chapter 13A of the Rules of the Original Side of the Calcutta High Court has no application to a mortgage suit. The plaintiff in a mortgage suit does not have any right to make any application for final judgment or decree under the provisions of Chapter 13-A in a mortgage suit. Unless the provisions of Chap. 13-A apply the Court does not acquire any jurisdiction or power to entertain the application and to pass any decree and any decree which the Court may pass will clearly be without jurisdiction.
Issues: 1. Whether Chapter 13A of the Rules of the Original Side of the Calcutta High Court is applicable to a mortgage suit? 2. Whether the trial Judge had jurisdiction to pass a decree under Chapter 13A in a mortgage suit? 3. Whether the order of the trial Judge directing substitution and amendment of the decree is appealable?
Ratio Decidendi: 1. Chapter 13A of the Rules of the Original Side of the Calcutta High Court is not applicable to a mortgage suit. 2. The trial Judge did not have jurisdiction to pass a decree under Chapter 13A in a mortgage suit. 3. The order of the trial Judge directing substitution and amendment of the decree is appealable.
Final Decision: The Court set aside the order of the trial Judge directing amendment of the decree. The Court also made it clear that the decree passed by the trial Judge under Chap. 13a is of no effect and is not binding on the mortgagor defendant. The order of the learned trial Judge directing substitution is, however, upheld.
( 1 ) THIS is an appeal against the order of the trial Judge dated the 5th July, 1977 directing substitution and amendment of the decree.
( 2 ) THE relevant facts may be briefly recorded. One Satya Mohan Roychowdhury since deceased filed this suit on a mortgage for a decree under Order 34, Rule 4 in Form No. 9 of Appendix D to the First Schedule of the Code of Civil Procedure or any other appropriate Form. There are two defendants in the suit. The defendant No. 1, Kalidas Pal is alleged to be the mortgagor and the second defendant, Kali Prosad Gupta is alleged to be the puisne mortgagee. The defendant No. 1, Kalidas Pal, the mortgagor, duly entered appearance in the suit and filed his written statement. The other defendant Kali Prasad Gupta, the puisne mortgagee has also entered appearance and filed his written statement.
( 3 ) AN application was made in the said suit for the appointment of a Receiver over the mortgaged property and in the said application a conditional order was passed. By the said order a Receiver was appointed but he was directed not to take possession, if the mortgagor defendant went on paying a particular amount every month. It appears that the mortgagor defendant had been paying the amount more or less regularly. During the pendency of the suit the mortgagor defendant, Kalidas Pal was adjudicated insolvent by an order passed by the District Judge of Hooghly in Insolvency Case No. 4 of 1. 974. Thereafter on the application of the plaintiff Satya Mohan Roychowdhury since deceased an order was passed directing that Mr. M. M. Halder, District Judge of Hooghly as the Assignee of the mortgagor defendant to be added as a party to this suit and on the basis of the said order Mr. M. M. Halder was added as a party to this suit.
( 4 ) AFTER Mr. M. M. Halder as the Assignee of the insolvent mortgagor defendant, was added as a party to this suit, the Solicitors for the plaintiff made an application on or about the 15th of June, 1976 for final judgment and decree in the suit under the provisions of Chap. 13a of the Rules of the Original Side of this Court. The said summons was taken out only against Mr. M. M. Halder, the District Judge of Hooghly who was added as a defendant as the Assignee of the mortgagor defendant. It appears that Mr. M. M. Halder did not contest the said application and on the said application the learned trial Judge passed a decree under Chap. 13a against Mr. M. M. Halder, the assignee, who was added as a defendant. It appears that by the said decree the learned trial Judge directed accounts to be taken in the manner indicated in the decree on the basis of the mortgage and referred the matter of taking accounts to the Registrar of this Court. The learned trial Judge further directed by the said decree the Registrar to make a report after he had taken accounts on the basis indicated in the decree. The learned trial Judge further directed and decreed that after the report of the Registrar had been confirmed, by efflux of time or otherwise with or without modification there would be a preliminary decree directing the defendant Kalidas Pal to pay the amount so found due in accordance with the provisions of the Code of Civil Procedure. By the said decree the learned Judge further directed and decreed that if the mortgagor defendant did not pay the said amount in terms of the preliminary decree the decree-holder would make an application for final decree.
( 5 ) IT appears that the mortgagor defendant who was adjudged insolvent in Insolvency Case No. 4 of 1974 by the District Judge of Hooghly at Chinsurah was subsequently discharged by an order made on or about the 10th December, 1976. The result was that the mortgagor defendant was no longer an insolvent person, Satya Mohan Roychowdhury, the plaintiff in the suit and in whose favour the said decree in Chap. 13a against the District Judge of Hooghly as the assignee of the insolvent had been passed, died on the 24th March, 1977. The present
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