JUDGMENT
1. This is an appeal by the defendants in a suit for redemption of a mortgage dated 14th December 1896. Harbans and Ramjit were the mortgagors and Sobha Ram and Frunt were the mortgagees and the property in suit was usufructuarily mortgaged to secure Rs 1,300. The mortgagors sold their equity of redemption to Lakhkhi, Chandan and Dipchand on 20th October 1900. After the death of Lakhkhi, his estate devolved upon Chunni Ram alias Chet Ram, Kalyan and Bhim Raj by succession. Chet Ram alias Chunni Ram sold his equity of redemption to the plaintiff on 3rd September 1920. The share of the plaintiff in the equity of redemption is about 1/6th in the property but the integrity of the mortgage not having been broken he institutes the present suit for redemption of the entire mortgage.
2. Sobha Ram, one of the original mortgagees, was dead and the suit, as originally framed, was instituted against Tikam Singh, and Ratan Singh, sons of Sobha Ram, and Frunt, one of the original mortgagees.
3. The plaintiff alleged that since the mortgage, a portion of the property had been acquired by the Government under the Land Acquisition Act and the mortgagees had received Rs. 50 by way of compensation from the Government. The suit was for redemption of the property on payment of Rs. 1,250.
4. Numerous grounds were put forward by way of defence. The defendants denied the plaintiff's title. They pleaded nonjoinder of necessary parties and claimed costs, because the plaintiff had not deposited the proper amount of the mortgage money under Section 83, T.P. Act. The first Court dismissed the suit inter alia on the ground that the plaintiff had failed to prove that his transferrers were the heirs of the original mortgagors.
5. The plaintiff appealed. On 14th January 1924, the plaintiff asked for leave to tender additional evidence in support of the pedigree propounded by him. The learned District Judge under Order 41, Rule 27 Civil P.C, accepted this additional evidence and directed the Court below to record such evidence as the parties might adduce, bearing upon the question of pedigree after bringing upon the record certain other persons whose joinder was necessary for the proper disposal of the suit. The learned District Judge directed the Court below to certify the result. It may be noticed that the learned District Judge did not set aside the decree of the trial Court directing a remand under Order 41. Rule 23, Civil P.C, nor did he remit an issue to the Court of first instance under Order .41, Rule 25, Civil P.C. All that the trial Court was required to do was to record some evidence after joining certain persons in the array of parties and to certify the said evidence to the Court of appeal.
6. The only Court which had seisin of the appeal was, therefore, the Court of the learned District Judge of Agra. While proceedings were pending under the directions of the learned District Judge before Mr. Shamsul Hasan, the Additional Subordinate Judge of Agra, Frunt, one of the respondents died on 14th November, 1924. No application was made for substitution of the names in the Court of the District Judge within 90 days from the date of the death of Frunt. On 18th April 1925, the respondents made an application is the Court of Mr. Shamsul Hasan that Frunt having died and no legal representative of Frunt having been brought upon the record within the statutory period, the appeal had abated in its entirety and the Court should declare that the appeal has so abated. The learned Additional Subordinate Judge had no jurisdiction to entertain this application, and he properly refused to grant the prayer contained in the application of the respondents. The plaintiff-appellant, however, moved the Additional Subordinate Judge by an application dated 22nd April 1925 that certain persons should be brought upon the record as the legal heirs and representatives of Frunt deceased. Notice was issued upon this application and it was eventually granted on 30th May 1925.
7. The learned District Judge had already held that the pedigree set up by the plaintiff was established. When the appeal came on for final disposal, it was argued that the appeal had abated because there was an indivisible cause of action affecting Frunt and the other two defendants and that no legal representatives of Frunt had been brought upon the record in the Court below within the statutory period. The learned District Judge refused to entertain this plea and the reasons given by him are rather curious:
On 30th May 1925, the learned Additional Subordinate Judge ordered under Order 22, Rule 4, that the legal representatives of Frunt should be brought on the record and he issued notices to them and brought them on the record and subsequent to this, evidence was taken. Under Order 43, Rule 1, there is no appeal from an order under Order 22, Rule 4, bringing legal representatives of deceased defendant or respondent on the record. Consequently, the matter cannot be raised in appeal.
8. The finding of the Court below on this point proceeds upon an obvious fallacy. The only Court which had the seisin of the appeal was the Court of the learned District Judge and his powers in whole or in part had not been delegated to the Additional Subordinate Judge. The only Court, therefore, which could entertain an application for substitution of names was the Court of the learned District Judge. The Additional Subordinate Judge was not competent to either entertain or to pass any orders upon the application made by the plaintiff for substitution of names. The order, therefore of the learned Additional Subordinate Judge dated 30th May 1925 was passed without jurisdiction.
9. It is patent that the legal representatives of Frunt not having been brought upon the record within 90 days from the death of Frunt the appeal automatically abated and the abatement of the appeal not having been set aside by any proper procedure adopted by the plaintiff, the suit of the plaintiff for redemption is bound to fail. There are a number of other irregularities in the judgment under appeal but, in view of our decision on the point that we have just disposed of, it is not necessary to go into them. The result is that we allow this appeal, set aside the decree of the lower appellate Court, and restore that of the Court of first instance with costs throughout.