Madras High Court
Paramananda Das And Anr. vs Mahabeer Dossji on 12 November, 1896
Equivalent citations: (1897)ILR 20MAD378
JUDGMENT
1. No doubt in Jagat Narain v. Jag Rup I.L.R. 5 All. 452 OLDFIELD J., observed that the word representative in Section 244, Civil Procedure Code, has no more extended meaning than heir, devisee or executor. But in Badri Narain v. Jai Kishen Das I.L.R. 16 All. 483 EDGE, C.J., and BANERJI, J., give strong reasons for holding that the term in question has in the contest a wider signification. Accordingly when a person purchased mortgaged property from the mortgagor after a decree had been obtained against him by the mortgagee for the enforcement of the latter's right such purchaser was held by the Calcutta and Allahabad Courts to be within the meaning of Section 244 (a) ' representative ' of the mortgagor, defendant Gour Sundar Lahiri v. Hem Ghunder Ghoudhury I.L.R. 16 CAL. 355 and Janki Prasad v. Ulfat Ali I.L.R. 16 All. 284.
2. This being so, it is difficult to distinguish on principle the case of the respondent here from the decisions just cited. For, though, in the present instance, the appellant's decree against the Raja, in execution of which the questions in dispute have arisen, was for money only, yet as at the time the respondent obtained from the Raja the taluk on mortgage, the property had been attached on account of the appellants' decree; the respondent who holds the mortgage which is subject to the said lien, must be held to stand in a position substantially similar to that occupied by the purchasers of the equity of redemption after the mortgage decrees in the Calcutta and Allahabad cases referred to above.
3. The contention, therefore, that the respondent is not a representative of the judgment-debtor, the Raja, within the meaning of Section 244 and the preliminary objection founded thereon that no appeal lies are, in our opinion, unsustainable.
4. The next question argued is whether the North Arcot District Court had power to sanction agreements of the kind referred to in Section 257 (a) of the Civil Procedure Code. Clearly it had not, inasmuch as it was not the Court which passed the decree. The words of the Section absolutely confine the power to grant the sanction to Courts which pass the decree.
5. The view taken by the District Judge on this point is right.
6. The appeal fails and is dismissed with costs.