Mahadeo Mandar vs Lilo Mandar

1. This appeal by special leave arises out of the suit (No. 74 of 1959) filed by the appellants praying for the following main reliefs:

"(a) that it be decreed and declared that the decree passed in rent suit No. 1900 of 1938 and the sale held in Rent Execution No. 842 of 1940 are void and nullities and the interest of the plaintiffs have not been affected by them;

(b) that it be decreed and declared that the settlement

taken by the defendants of the lands in Schedule A below are fraudulent and inoperative and the plaintiffs are entitled to redeem the mortgages;

(c) that a decree for redemption of the properties described in Schedule A below be passed in favour of the plaintiffs and the defendants concerned be directed to reconvey the same to them and to give possession thereof."

2. The suit was compromised with defendant No. 10 but decreed against the other 13 defendants. Ultimately the High Court, on appeal, dismissed the suit.

3. The learned counsel for the respondents raises a preliminary objection that the appeal has abated in toto because of the order dated December 14, 1967, passed by this Court. On the basis of this order the appeal was dismissed for non-prosecution as against respondents Nos. 2, 3 4, 5, 15, 16 and 20 and abated as against respondents Xos. 18 and 19. He says that defendant No. 7 was not included as a respondent in the appeal at all.

4. In order to dispose of this preliminary objection it is necessary to give a few facts. The suit was inter alia for redemption of four mortgages. The first mortgage dated June 18, 1926, was executed by Dwarki Mandar, defendant No. 14, and his brother Gonu Mandar, deceased, father of the plaintiffs, in favour of Narsingh Prasad Mandar, the late father of Kameshwari Mandar, defendant No. 4. The second mortgage was executed on May 7, 1928, by Dwarki Mandar, defendant No. 14, in favour of Mulhai Mian, defendant No. 5. On July 10, 1930. defendant No. 14, and Gonu Mandar executed another mortgage deed in favour of Salkhu Mandar father of Hari Mandar, defendant No. 6, and husband of Mst. Sobhia, defendant No. 7. The fourth mortgage was executed on July 11, 1932, by defendant No. 14 and Gonu Mandar in favour of Saligram defendant No. 1. Subsequently the said mortgagee. Saligram, sold his interest to Debnandan Singh, defendant No. 2 and Rosan Singh, defendant No. 3.

5. It was alleged in the plaint that the decree passed in Rent Suit No. 1900 of 1938, filed by defendants Nos. 11, 12 and 13, and the sale held in Rent Execution No. 842 of 1940, were null and void. It was further alleged that in that execution defendants Nos. 11, 12 and 13 fraudulently purchased the holding in dispute on September 26, 1940. for a grossly inadequate sum in concert and collusion with the other defendants, and they had settled this land on parmhans Singh, defendant No. 8, Bhubnesar Choudhary, defendant No. 10, and Mst. Sobhia, defendant No. 7.

6. 21 persons were impleaded as respondents in the appeal before this Court. As already mentioned, the appeal has been dismissed against 9 respondents. Respondent No. 2, Saligram, was defendant No. 1. Respondent No. 3, Ramchanclra Singh s/o Deonandan Singh, deceased and respondent No. 4, Mst. Bolkesai, widow of Deonandan Singh, represent Deonandan Singh who was defendant No. 2 Rosan Singh, respondent No. 5, was defendant No. 3. Respondent No. 15, Hari Mandar, was defendant No. 6.

Respondent No. 16. Mst. Murti, is widow of Parmhans Singh, who was defendant No. 8. Respondent No. 18, Bachi Kumar, was defendant No. 11. Respondent No. 19, Babu Kamaldhari Lal, was defendant No. 12, and respondent No. 20, Babu Chamaldhari Lal, was defendant No. 13.

7. In other words, the appeal has been dismissed as against the purchasers of the holding at the auction, namely, defendants Nos. 11, 12 and 13, as respondents 18, 19 and 20. It has further been dismissed against mortgagees, namely, defendant No. 6 and defendant No. 1, and the alienees of defendant No. 1. namely, defendants Nos. 2 and 3. The appeal has also been dismissed against respondent No. 16, a settlee, and we have already mention-ed that the defendant No. 7, both a representative of a mortgagee and a settlee, was not made a party to the appeal at all. Under these circumstances it is obvious that the whole appeal must be dismissed because it cannot proceed in the absence of the respondents mentioned above against whom the appeal has already been dismissed. Obviously, no decree or declaration that the decree and sale mentioned above be declared null and void can be passed in the absence of some of the mortgagees and purchasers and settlees.

The preliminary objection must, therefore prevail and the appeal is dismissed with costs.