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2004 DIGILAW 829 (PAT)

Sulochana Verma v. Sri Ram Chandra Prasad

2004-08-17

R.N.PRASAD

body2004
Judgment R.N.Prasad, J. 1. The civil revision petition has been filed against the order dated 22.3.2004 passed by Munsif, IIIrd, Gaya in Mortgage Suit No. 33 of 1997 by which he refused to frame preliminary issue regarding maintainability of the suit. 2. The relevant facts of the case are that plaintiff-opposite party filed Title Suit No. 102 of 1990 against the defendant- petitioner. The suit was for a decree of redemption of the mortgage holding in favour of the plaintiff on payment of Rs. 4680.00 or any amount which the Court determines and for direction to the defendant to deliver vacant possession of the mortgaged property to the plaintiff failing which the same may be effected through the process of the Court. The defendant-petitioner appeared in the suit and filed written statement. The suit was decreed on 10.12.2002 against which the petitioner filed Title Appeal No. 1 of 2003. After hearing the parties the appeal was allowed and the judgment and decree of the trial Court was set aside. The matter was remitted to the trial Court directing to proceed afresh in the light of the observation made in the judgment and order. For better appreciation the relevant portion of the order is quoted hereinbelow :- - "8. After going through the evidence available on the record as well as legal principle cited on behalf of respective parties, I am of the view that this case is fit to be remanded because of the non-compliance of the proviso enumerated under Order XXIV, Rule 7 of the CPC, by the learned lower Court. So far merit of the case is concerned Ext. 2 as well as from the evidence available on the record I am of the view that the case of the respondent/plaintiff is fully proved as well as admitted one. The story of negotiation of sale for the present purpose will not give an adverse impact and is not to be considered as legal, tenable, sustainable ground to dethrone the respondent/plaintiff. The story of negotiation of sale for the present purpose will not give an adverse impact and is not to be considered as legal, tenable, sustainable ground to dethrone the respondent/plaintiff. So far grievance over calculation of amount is concerned, in my view, the appellant/defendant will get the same fully redressed, if the procedure as provided under Order XXXIV, Rule 7 is followed and for that, the learned lower Court is directed to at least peep over the material having brought up by the respective parties because of the fact that the learned lower Court had not specified the exact amount to be paid to the appellant/ defendant by the plaintiff/respondent for the purpose of redemption. On this score, I am not convinced with the submission advanced on behalf of learned counsel for the respondent/plaintiff that the non-adoption of the legal requirement as provided under Order XXXIV, Rule 7 was mere a clerical or arithmetical wrong for which he relied upon the decision reported in 2001 SAR (Civil) page 288. Therefore, the learned lower Court is directed to take pain on this score and get the matter finally adjudicated upon specifying the same and further following the procedure as laid down under Order XXXIV stage by stage as it is specially meant for Mortgage suit. 9. Therefore, the judgment and decree of the learned Court below is set aside and the matter is remitted back to the learned lower Court to proceed afresh in light of the observation made above. Therefore, the appeal is allowed under the aforesaid terms." 3. After remand an application was filed by the petitioner before the trial Court that the plaintiff-opposite party has sold the property in suit and has no interest. In the circumstances the suit is not maintainable at his instance and as such made a prayer that maintainability matter be decided as a preliminary issue. A rejoinder to the said petition was filed on behalf of the plaintiff-opposite party stating therein that though he sold the property, it cannot be said that at his instance the suit is not maintainable. The vendee will step in the shoes of the vendor and as such question raised by the petitioner is not at all tenable. In fact, the plaintiff-opposite party disputed the claim of the petitioner that maintainability matter be decided as a preliminary issue. The vendee will step in the shoes of the vendor and as such question raised by the petitioner is not at all tenable. In fact, the plaintiff-opposite party disputed the claim of the petitioner that maintainability matter be decided as a preliminary issue. The Court after hearing the parties and considering all the aspects has come to a conclusion that the appellate Court has remitted the matter to this Court with observation/direction and this Court has to decide the case on limited issue as has been indicated by the appellate Court and as such question of maintainability cannot be decided at this stage. The order was passed to the aforesaid effect on 22.3.2004 which has been impugned in the civil revision petition. 4. The submission of the learned counsel for the petitioner is that since the petitioner has raised a question with respect to maintainability of the suit such issue has to be decided as a preliminary issue. However, he admits that it is not a pure question of law rather a mixed question of law and fact. Learned counsel further pointed out that because of subsequent event i.e., sale of the property in suit by the plaintiff, such occasion has arisen and as such the Court has committed error in refusing to decide the question of maintainability as a preliminary issue. On the other hand, learned counsel for the opposite party vehemently argued that contention of the learned counsel for the petitioner is not tenable even if the plaintiff has sold the property in suit. The plaintiff is entitled to prosecute the redemption suit to its conclusion. He also pointed out that the appellate Court has remitted the matter on limited point and as such, such issue cannot be decided by the Court concerned. The trial Court has to decide the issue on which the case has been remitted and not otherwise. 5. On consideration of the submissions made by the learned counsel for the parties, this much is obvious that the suit for redemption was decreed against which the petitioner filed an appeal. The appellate Court set aside the judgment and decree of the trial Court and remitted the matter to the trial Court for a fresh consideration in the light of the observation made in the order which has been quoted above. The appellate Court set aside the judgment and decree of the trial Court and remitted the matter to the trial Court for a fresh consideration in the light of the observation made in the order which has been quoted above. From the quoted portion it is evident that the appellate Court has categorically stated that in view of the non-compliance of the provision enumerated under Order XXXIV, Rule 7 of the CPC the case is remitted to the trial Court. So far as the merit of the case is concerned from Ext. 2 as well as from the evidence available on the record the Court was of the view that the plaintiff has fully proved his case. The grievance was with respect to calculation of the amount. The appellant even will get the same fully redressed if the procedure as provided under Order XXXIV, Rule 7 of the CPC is followed. Lastly, the appellate Court directed the trial Court to take pain on this score and get the matter finally adjudicated upon specifying the same and further following the procedure as laid down under Order XXXIV, Rule 7 of the CPC stage by stage as it is specially meant for mortgage suit. In the last line also the appellate Court has directed the trial Court to proceed afresh in the light of the observation made in its order. Thus, it is evident from the order of the appellate Court that though appeal was allowed, the case was remitted to the trial Court only on limited point i.e., non-compliance of Order XXXIV, Rule 7 of the CPC. In such a situation the trial Court cannot go beyond the direction of the appellate Court. The submission of the learned counsel for the petitioner in this regard, in my view, has no substance. 6. Furthermore, the plaintiff has filed a suit for redemption and also for recovery of possession. Even though he has sold the land in dispute yet he cannot be debarred from prosecuting the suit. A purchaser has no better right than the vendor. 6. Furthermore, the plaintiff has filed a suit for redemption and also for recovery of possession. Even though he has sold the land in dispute yet he cannot be debarred from prosecuting the suit. A purchaser has no better right than the vendor. The purchaser will step in the shoes of the vendor and it is the obligation of the vendor to see that the property which has been sold/sale deed may not be inoperative because of his laches and as such even if the land in dispute has been sold by the plaintiff, he is necessary party to the suit and as such at his instance the suit/case is maintainable. In the case of Joti Lal Sah and Ors. V/s. Sheodhayan Prasad Sah and Ors., AIR 1936 Patna 420, the Division Bench while considering such question has held that a person who institutes litigation may prosecute it to its conclusion notwithstanding a devolution of his interest in the property. The litigation will continue in his name for the benefit for his successors. Therefore, the claim of the petitioner that the suit is not maintainable at the instance of the plaintiff-opposite party as he sold the interest in the property, has to leg to stand and the Court has rightly rejected the prayer of the petitioner to decide the maintainability matter by framing a preliminary issue. 7. Thus, on consideration I find to no merit in the civil revision petition. Accordingly, it is dismissed.