Andhra Pradesh High Court - Amravati
Common Order vs Gangadhar1. They Submit That Trial ... on 15 November, 2022
BSS,J
C.R.Ps.Nos.6170 of 2017
and batch
1
HON'BLE SRI JUSTICE BANDARU SYAMSUNDER
Civil Revision Petitions No. 6170, 6331, 6339, 6340, 6341, 6342,
6343, 6346, 6365, 6421, 6440, 6445, 6454, 6545, 6546, 6547,
6548, 6549, 6774 and 7362 of 2017
COMMON ORDER:
These Civil Revision Petitions arise out of similar orders passed by learned III Additional District Judge, Nandyal, in interlocutory applications filed by proposed parties under Order I Rule 10 of Civil Procedure Code (in short 'CPC') on the same day in different similar suits. Since the question of law and issues, which arise to be dealt with in all these Civil Revision Petitions is similar and the matters are distinct only in their respective facts and events, all these revision petitions are being disposed of by common order.
2. All these Civil Revision Petitions are filed by the petitioners under Article 227 of Constitution of India against the orders passed by learned III Additional District Judge, Kurnool, at Nandyal, in interlocutory applications filed in ten original suits by different parties, dated 20.10.2017 wherein learned trial Judge allowed the petitions filed by proposed parties under Order I Rule 10 CPC read with Section 151 CPC and permitted them to come on record as defendants in the suits.
BSS,J C.R.Ps.Nos.6170 of 2017 and batch 2
3. For better understanding of the case, following tabler form is extracted to show against which order in the original suit, which revision petition has been preferred and the same reads as under:
Sl.No. C.R.P.Number I.A.Number O.S.Number 1 6170/2017 1500/2013 46/2010 2 6331/2017 1508/2013 55/2010 3 6339/2017 1504/2013 51/2010 4 6340/2017 1505/2013 52/2010 5 6341/2017 1502/2013 49/2010 6 6342/2017 1507/2013 54/2010 7 6343/2017 1509/2013 56/2010 8 6346/2017 1506/2013 53/2010 9 6365/2017 1501/2013 48/2010 10 6421/2017 1143/2014 51/2010 11 6440/2017 1153/2014 56/2010 12 6445/2017 1147/2014 53/2010 13 6454/2017 1137/2014 48/2010 14 6545/2017 1135/2014 46/2010 15 6546/2017 1149/2014 54/2010 16 6547/2017 1151/2014 55/2010 17 6548/2017 1139/2014 49/2010 18 6549/2017 1145/2014 52/2010 19 6774/2017 1511/2013 59/2010 20 7362/2017 1157/2014 59/2010 BSS,J C.R.Ps.Nos.6170 of 2017 and batch 3
4. The case of proposed defendants before the trial Court in brief is that they are third parties and they also filed suit against second respondent/D1 for recovery of their mortgage debt dated 10.03.2008 wherein they added all the subsequent mortgagees. They submit that the first respondents/plaintiffs, who are revision petitioners herein, filed suits, wherein purposefully avoided to implead them as defendants. It is also the contention of proposed parties that they being subsequent mortgagees are necessary parties to the suit filed by first respondents/plaintiffs as per Order XXXIV Rule 1 CPC. They have stated that R2/D1 mortgaged entire 49 cents of land to them, whereas portion of land alone is mortgaged to first respondents/plaintiffs though it is prior mortgage. They pray to implead them as defendants in the suits being subsequent mortgagees. The petitioners/plaintiffs/revision petitioners filed counters denying averments in the affidavits of proposed parties. It is the contention of revision petitioners/first respondents/plaintiffs that proposed parties being subsequent mortgagees are not necessary parties to the suit as property under mortgage was already sold by the bank and thereafter, deposited balance of sale consideration amount after appropriating the debt due to them. They also submit that proposed parties filed writ petition and got orders and they intended to implead as parties to the suit though BSS,J C.R.Ps.Nos.6170 of 2017 and batch 4 their right to redemption extinguished as there is no property available. It is the contention of revision petitioners/first respondents/plaintiffs in the suits that the proposed parties are neither necessary nor proper parties. They pray to dismiss the revision petitions.
5. After hearing both sides, the learned trial Judge allowed the petitions filed by the proposed defendants and directed the revision petitioners/plaintiffs to amend the plaint by adding the proposed parties as defendants in the suits.
6. Aggrieved by the orders passed by Court below, revision petitioners, who are plaintiffs in the above referred ten suits, have preferred 20 revision petitions with similar grounds. It is the contention of revision petitioners that trial Court failed to understand the scope and significance of Order I Rule 10 CPC read with Order XXXIV Rule 1 CPC and also misread the ratio laid down in Soli Pestonji Vs. Gangadhar1. They submit that trial Court failed to see that provisions of Order XXXIV Rule 1 CPC are not mandatory, which are only directory and trial Court erred in holding that the attachment of amount made by the revision petitioners in the suits cannot prevail over the puisne mortgagee. They pray to allow the revision petitions and dismiss the 1 AOR 1969 SC 600 BSS,J C.R.Ps.Nos.6170 of 2017 and batch 5 petitions filed by proposed parties to implead them as respondents in the suits filed by them.
7. I have heard Mr.M.R.S.Srinivas, learned counsel for the revision petitioners and Mr.O.Manohar Reddy, learned Senior Counsel for the respondents.
8. The learned counsel for the revision petitioners mainly contended that admittedly proposed defendants are subsequent mortgagees and now there is no mortgaged property, which already sold by them for recovery of their debt and remaining sale proceeds alone have been deposited by filing inter-pleadary suit, which also dismissed and thereafter revision petitioners filed petition to sent for the amounts, which they are entitled basing on mortgage deed executed by R2/D1 in all suits in their favour. He would submit that Order XXXIV Rule 1 CPC is only a procedural law, which will not over right provisions of Section 60 of Transfer of Property Act. He would further submits that as per Section 91 of Transfer of Property Act, proposed parties are not necessarily be impleaded in the suit filed by prior mortgagee when their mortgaged property is not available. It is the contention of learned counsel for revision petitioners that plaintiffs cannot be forced to fight against the person whom they are not intended to fight. He argued that right to redemption by the proposed parties already extinguished and BSS,J C.R.Ps.Nos.6170 of 2017 and batch 6 Order XXXIV Rule 1 CPC cannot be read in isolation, which has to be read along with Order XXXIV Rule 13 CPC, as no money excess to the money due to the revision petitioners in all the suits is available, no purpose will be served to implead proposed parties as defendants in the suits filed by the revision petitioners. He relied on following precedent law:
1. Allokam Peddabbayya and another - Appellants Vs. Allahabad Bank and Others - Respondents2
2. Jamila Begum (Dead) Through Legal Representatives -
Appellant Vs. Shami Mohd.(Dead) through Legal Representatives and Another - Respondents3 (Paras 32 to 35)
3. Soly Pestonji Majoo And Others - Appellants Vs. Gangadhar Khomka - Respondent4
4. Habeeb Khan and Others - Petitioners Vs. Valasula Devi and Others - Respondents5
5. Lachhmi Narain and another - Appellants Vs. Kalyan and Another - Respondents6 He prays to allow the revision petitions.
2 (2017) 8 Supreme Court Cases 272 3 (2019) 2 Supreme Court Cases 727 4 1969(1) Supreme Court Cases 220 5 AIR 1997 AP 53 6 AIR 1960 Rajasthan 1 BSS,J C.R.Ps.Nos.6170 of 2017 and batch 7
9. The learned Senior Counsel Mr.O.Manohar Reddy, representing for the respondents would submit that admittedly revision petitioners have not mortgagees of entire property and they are mortgagees of portion of properties though they are prior mortgagees. He would further submit that bank sold entire two items of the property consisting of 49 cents 620 links and have appropriated portion of sale proceeds towards their loan amount and deposited the remaining amount in the inter- pleadary suit filed by them, which shows portion of sale proceeds in respect of sale of entire mortgaged property deposited in the suit, whereas revision petitioners are mortgagees of portion of properties and amount lying in the suits filed by revision petitioners which amount sent for from inter-pleadary suit filed by the bank includes sale proceeds of entire mortgaged property, thereby proposed parties though subsequent mortgagees for entire property are necessary parties to the suits filed by the mortgagees in view of Order XXXIV Rule 1 CPC. He also relied on Section 91 of Transfer of Property Act. The learned Senior Counsel relied on following precedent law:
1. Areti Maramma - Petitioner Vs. State Bank of India, Secunderabad and others - Respondents 7 , wherein scope of Order XXXIV Rule 1 CPC explained by this Court in reference to the provisions 7 2002(3) ALT 424 BSS,J C.R.Ps.Nos.6170 of 2017 and batch 8 of Transfer of Property Act and held that decree in a mortgage suit does not bind a person having interest in the equity of redemption if he was not a party to the suit and the mortgagee will have the remedy of instituting a fresh suit against a person so omitted if the cause of action is within the limitation and that the defect on account of non-
compliance of Order XXXIV Rule 1 CPC, which crept into the decree cannot be cured on account of the person so omitted coming to the suit at a later stage.
2. Allokam Peddabbayya and Another - Appellants Vs. Allahabad Bank and Others - Respondents (referred 2 Supra). The ratio laid down in the said decision also relied on by learned counsel for the revision petitioners.
He prays to dismiss the revision petitions.
10. Now, the point that emerges for consideration by this Court in all the revision petitions is: "Whether the orders under challenge are sustainable, tenable and whether the same warrants any interference of this Court under Article 227 of Constitution of India?"
11. POINT: Though learned counsels representing both sides have submitted with regard to the rights of subsequent mortgagee, no BSS,J C.R.Ps.Nos.6170 of 2017 and batch 9 precedent law is submitted in respect of Order I Rule 10 CPC, which explains with regard to necessary and proper parties, which reads as follows:
"Order I Rule 10. Suit in name of wrong plaintiff.
(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
BSS,J C.R.Ps.Nos.6170 of 2017 and batch 10 (4) Where defendant added, plaint to be amended--Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copes of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."
12. A reading of above provision of law makes it abundantly clear that parties to the suit are of two kinds, viz. necessary party and property party. 'A necessary party' is a party without whom suit cannot be decided. 'A proper party' is a party in whose absence suit will not be defeated. Hence, non-joinder of necessary party is fatal to the suit and non-joinder of proper party is not fatal to the suit. Also, proper party is a party against whom any relief has not been sought. The question of necessary party and proper party has to be looked with utmost due diligence with an object to avoid multiplicity of litigations and proceedings.
BSS,J C.R.Ps.Nos.6170 of 2017 and batch 11
13. In Baluram Vs. P.Chellathangam and Others8, the Hon'ble Apex Court considered the scope of Order I Rule 10 (2) CPC and held that Court while exercising its judicial discretion under Order I Rule 10(2) of the Code, the Court will ofcourse act according to reason and fair play and not according to whims and caprice. It is also explained by Hon'ble Apex Court though plaintiff is dominus litis, Order I Rule 10(2) CPC provides for impleadment of proper or necessary parties if Court feels that their presence is necessary to arrive just conclusion in the suit, which can order for implead them as a party suo moto or petition filed by either side. Due to that plaintiff on the doctrine of dominus litis cannot oppose adding of proper or necessary party to the suit in view of specific provision under Order I Rule 10(2) CPC.
14. It would also beneficial to extract Order XXXIV Rule 1 CPC, which reads as under:
"Parties To Suits For Foreclosure, Sale And Redemption:-
Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage.
Explanation-
A puisne mortgagee may sue for foreclosure or for sale without 8 2015(2) ALT 44 (SC) BSS,J C.R.Ps.Nos.6170 of 2017 and batch 12 making the prior mortgagee a party to the suit; and a prior mortgagee need not be joined in a suit to redeem a subsequent mortgage."
15. On bare reading of above referred provision, which makes it clear that all persons having an interest either in the mortgaged security or in the right of redemption shall be joined as parties to any suit relating to a mortgage. This Court in P.Govinda Reddy Vs. Golla Obulamma9 also explained the scope of Order XXXIV Rule 1 CPC and held that as per Order XXXIV Rule 1 CPC, all those persons interested in the right to redemption or in the security have to be joined as parties to the suit. The object of the rule is to enable the Courts to do full justice to the parties according to their rights and liabilities as under law.
16. The ratio laid down in the decisions relied on by both sides is in respect of rights of subsequent mortgagee and extinguishing right to redemption when no mortgaged property is available, which can only be considered at the time of final disposal of the case, not in a petition filed under Order I Rule 10 CPC filed by the proposed defendants.
17. It is not in dispute that different mortgagees have instituted above referred ten suits against common mortgager, who is shown as R4/D1 in the present revision petitions. It is also not in dispute that 9 1971 AIR (AP) 363(FB) BSS,J C.R.Ps.Nos.6170 of 2017 and batch 13 during the pendency of the suits filed by mortgagees against R4/D1, who also shown Indian Overseas Bank as D2 in the suits. Admittedly, D2 bank sold entire property of R4/D1/mortgager by invoking provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFACIE Act). Thereafter, Indian Overseas Bank sold entire property of R4/D1 in public auction, got sale proceeds of Rs.5,34,50,000/- and then appropriated their dues and deposited the balance amount of Rs.3,54,41,556/- into the Court by filing inter- pleadary suit in O.S.No.20 of 2011 on the file of same Court and the said suit was dismissed on 23.12.2013 and thereafter, revision petitioners herein having filed individual petitions in their suits, sent for different amounts which are due by R4/D1 basing on mortgage and said amounts are lying in the suits filed by the revision petitioners, which prima facie shows that portion of amounts sent for by revision petitioners in ten original suits referred above, which is portion of amount in respect of sale of entire mortgaged property of R4/D1. Admittedly, revision petitioners herein are not mortgagees of entire property and they are mortgagees of portion of properties, whereas proposed parties are though subsequent mortgagees, it is for entire property of R1/R4, which sold by the bank invoking provisions of SARFACIE Act, which shows that the portion of sale proceeds sent for from inter-pleadary suit filed by BSS,J C.R.Ps.Nos.6170 of 2017 and batch 14 the bank to the suits filed by the revision petitioners, due to that it cannot be said that proposed defendants have no interest in the security or mortgaged property.
18. The learned trial Judge rightly held that mortgaged property has only changed its shape and not totally extinguished, due to that he allowed the petitions filed by the proposed defendants to come on record in the suits filed by the revision petitioners. The rights of revision petitioners being prior mortgagees and whether proposed defendants have lost their right of redemption can only be decided in the main suit not in the petition filed under Order I Rule 10 CPC. When admittedly proposed defendants are also subsequent mortgagees in respect of entire property of R4/D1, which was sold by the bank in public auction and portion of amount available in the suits filed by the revision petitioners, it cannot be said that proposed defendants are not necessary parties to the suits. The proposed parties, who also filed suits for their mortgaged debt and when mortgaged property is not available and sale proceeds are available in the suits filed by revision petitioners, certainly they are necessary and also proper parties to the suits filed by revision petitioners. The revision petitioners are at liberty to put forth their case before trial Court with regard to the alleged BSS,J C.R.Ps.Nos.6170 of 2017 and batch 15 extinguishing rights of proposed defendants which trial Court shall decide in the suits after adducing evidence by both sides.
19. This Court did not find any illegality or irregularity in the orders passed by learned trial Judge warranting interference of this Court invoking supervisory jurisdiction under Article 227 of Constitution of India. It is made clear that if anything discussed in the present revision petitions with regard to the merits of the case, it is for the disposal of the present civil revision petitions. It shall not come in the way of the trial Court while considering the plea of the revision petitioners with regard to rights of redemption by the proposed defendants, which shall be decided by the trial Court on its own merits after considering the ratio laid down by the decisions relied on by both parties.
20. In the result, all the Civil Revision Petitions are dismissed. No order as to costs. Consequently, miscellaneous petitions pending if any, shall stand closed. The interim orders if any granted earlier, shall stand vacated.
______________________ BANDARU SYAMSUNDER, J Dt:16.11.2022.
Rns BSS,J C.R.Ps.Nos.6170 of 2017 and batch 16 HON'BLE SRI JUSTICE BANDARU SYAMSUNDER Civil Revision Petitions No. 6170, 6331, 6339, 6340, 6341, 6342, 6343, 6346, 6365, 6421, 6440, 6445, 6454, 6545, 6546, 6547, 6548, 6549, 6774 and 7362 of 2017 Date: 16.11.2022 Rns