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cation." Therefore in my opinion the section means that a person
considering himself aggrieved by a decree or order cannot
apply for a review of judgment if either he himself has appealed
or any other person has appealed on a ground common to the
appellant and himself or any other person has filed an appeal
to which he has been made a respondent and in which he can
under section 561, Civil Procedure Code, or otherwise present
to the appellate Court the case on which he wishes to apply for
review. So construed the section does not provide for a case
like the present where after the application for review was filed
an appeal was filed by another party to which the applicant
was made a respondent and could have presented to the appel-
late Court the case on which he applied for review ; nor does
the section provide for a case in which an appeal on a ground
common to the appellant and applicant is filed after the appli-
cation for review. It was therefore contended that the words
" may apply " should be construed as meaning " may prosecute



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302 THE OUDH CASES. [Vol. VII.

Sarjn Perabad ^^ application '' and the words " being a respondent " as meao-
Sbeo Cbara
r Lai and



[ Sheocharan ing " having become a respofldoirt." Bnt such a oonstrnction



others. involves a departure from the primary and obvions meaning of
the words and if so construed the section makes no provision
for the case of an apped by another person being withdrawn
with the result that the ground for review is not or cannot, as
the case may be, be brought before the appellate OourL

As a matter of practice I think that if after an application
for review has. been filed an appeal is filed on a ground common
to the appellant and applicant or an appeal is filed in which
the applicant can file objections under section 561 the Court
to which the application is made should decline to proceed
with the application until the appeal has been heard, and when
the applicant has been made a respondent and can obtain the
relief which he requires by means of objections under section
561 should require him to file such objections. Such a course
avoids a conflict of orders and will often prevent the possibilit}-
of another appeal such as we now have before us. However^
as the law does not require a Court to do this and as the appli-
cation was in my opinion made in accordance with the law
and the hearing of it was adjourned pending the disposal of
the appeal and this Court was not asked to consider the ques-
tion raised by the application for review and in fact did not
consider it I think that the order under appeal was made with
jurisdiction. That the order is right on the merits is not dis-
puted. I would dismiss this appeal with costs.

RusTOMJBE, O. A. J. C. — ^I entirely agree in the order
proposed. The Subordinate Judge was legally seised oE the
application for review and he had to pass orders on it
since the matter in dispute before him had not been brought
up before the Court of appeal. It would have been better,
as my learned colleague suggests, if he had adjourned the
hearing and directed the applicant to file his objections under
section 561 of the Code of Civil Procedure in the appeal which
was filed later. His not having done so, however, q^nnot bar
his exercise of the jurisdiction he undoubtedly possessed. I
agree in the dismissal of the appeal with costs.



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Vol. Vn.] THE OUDH CASES 303

MISCELLANEOUS APPLICATIONS, Nos. 280 AND 281
OF 1904 (In FIRST CIVIL APPEAL, No. 39 OF 1903.)



Before Mr. Wells and Mr, Chatnier.



MusAMMAT BiLAS KuAR and another (Defendants) v. Shbo 1904.
Darshan Singh {Plaintiff). Aug. 24.



Pleader^ refusal hy^ to accept notice of date of hearing of case
— Appeal^ dismissal of in default — Advocate y vntKdrawal of front
case — Advocate cf Chartered High Court — Code of Civil Proce*
durey ss. 36,39^ and 40.



An appeal waB filed in the Court of the Jadlcial CommiiBioiter bj a vakil
of that Court It wag set dowa for bearing for January 13th 1904. Notice
for that date was sent to the appellant*8 pleader and was accepted by him.
The appeal could not be beard on the 13th January and was adjourned to the
5th July. Notice as before was issued to the appellant's pleader who iMfosed
to acoept it and wrote on it, *' Now I do not appear in the ease." The appeal
was called on for hearing on the last mentioned date, and neither the appellant
nor bis pleader being present was dismissed in default.

Held, that having regard to the provisions of sections 86, 39, and 40 of the
Code of Civil Procedure, service on a duly appointed pleader is, unless the Court
otherwise directs, equivalent to service on his cilent and that a pleader cannot
withdraw merely by writing on a notice that he no longer appears in the case.
Beld therefore, that the appeal was rightly dismliBed.

Held (further, that s. 40 of the Code applies as much to Advocates as to
any other persons coming within the definition of pleader in b. 2, and that
even in the case of an Advocate of a Chartered High Court a m^e refusal to
accept notice can not ordinarily be treated as equivalent to notice to the Court
of the Judicial Commissioner that Counsel has withdrawn from an appeal or
other proceedings.



Wklls, 0. J. C. AND Chamibr, a. J. C. — ^These are appli-
cations ander section 558 o£ the Code of Civil Procedure for
re-admission of an appeal which was dismissed by ns for default
on July 5th last. The appeal was presented by B. Ishwari
Prasad a Vakil of this Court on April 29th 1903. The Vakil



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J04 THE OUDH CASES. [Vol. VIT

signed the grounds of appeal and filed his vakakUnama along
svith the appeal. The appeal was set down for hearing lot
January 13th 1904. Notice for that date was sent to B. Ishwari
Prasad for the appellants and notice to the respondent was sent
bo the District Court for service on the respondent. On
December l4th 1903 B. Ishwari Prasad accepted notice for
January 13th 1904. Owing to other cases the appeal could not
be taken up on the last mentioned date and the Court ordered
that another date should be fixed. July 5th was then fixed.
Notice as before was issued to B. Ishwari Prasad for the appel-
lants but he refused to accept it and wrote on the notice,.
" Now I do not appear in the case." On July 5th the appeal
ivas dismissed in default.

In the application for readmission of the appeal it is
stated that neither the female appellant nor the minor appel-
lant's guardian Pahlwan Singh received notice of the date fixed
Eor the hearing of the appeal. On the other hand there is an
affidavit by one Badal Khan a servant of the respondent that
he saw and conversed with Pahlwan Singh and his com-
panion Munnu Singh, a relation of the female appellant, near
hhis Court on July 4th the day before the appeal was
tlismissed and that Munnu Singh was in Court when the
appeal was dismissed and Pahlwan Singh was in the verandah
outside. Here we may mention that although Pahlwan
Singh could not be found when this application was heard
Munnu Singh was found to be in the Court. We have no
ioubt whatever that the female appellant and Pahlwan
Singh knew that the appeal would be heard on the 5th of July
and that Pahlwan Singh was in the Court verandah when the
ippeal wasjcalled on. It must be perfectly well known that
ippeals to this Court now come on for hearing within a few
months and it is inconceivable that the appellants should havo
iaken no steps to inform themselves of the date fixed for the
blearing of the appeal. The appellants also received notice of
ihe date fixed through their pleader. They deliberately absented



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VoL.vri-]



THE OUDH CASES.



305



themselves and we therefore decline to readmit this appeal. Masdmniae
mi • T . . ,. . Hiias Knar

ihis application is dismissed^ and another

r.

Mr. Dutt who appeared in support of these applicants She<^Darehan
fi^gg^s^d that the notice to the appellants should have been
sent to the pistrict Court to be served upon the appellants
personally. We cannot allow such a suggestion to pass un-
noticed. The word " pleader " in the Code of Civil Procedure
•is defined as meaning every person entitled to appear and plead
for another in Court and including an Advocate, a Vakil and
an Attorney of the High Court. Section 36 of the Code pro-
vides that any appearance application or act in or to any
Court required or authorised by law to be made by a party
to a suit or appeal may, except when otherwise expressly pro-
vided, be made or done by the party in person or by his recognised
agent or by a pleader duly appointed to act on bis behalf. Section
40 provides that processes served on the pleader of any party
or left at the office or ordinary residence of such pleader re-
lative to a suit or appeal shall be presumed to be duly commu-
nicated and made known to the party whom the pleader represents
and unless the Court otherwise directs shall be as effectual for
all purposes in relation to the suit or appeal as if the same had
been given to or served on the party in person. The appoint-
ment of an Advocate of a Chartered High Court may be by word
of mouth but the appointment of any other person coming
within the difinition of pleader in the Code must be in writing
and must be filed in Court. Section 39 provides that such an ap-
pointment in writing is to be considered as being in force until
revoked with the leave of the Court by a writing signed by the
client and filed in Court or until the client or the pleader dies
or all proceedings in the suit are ended so far as regards the
client. These provisions make it quite clear that service on a duly
appointed pleader is, unless the Court otherwise directs, equiva-
lent to service on his client and that fi pleader cannot withdraw
merely by writing on a notice that he no longer appears in the
case. There have been instances in whichi Advocates have de-
clined to accept notices on the ground that section 40 of the Code



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306



THE OUDH OASES.



[Vot. Vll.



Miisammat
Bilas Knar
and another

V,

Sheo Darabaa
Singh.



doed not apply to them. This is a mistaken idea and we take this
opportunity of correcting it. Section 40of the Oodeappliesas mach
to Advocates as to any other person coming within the defini-
tion of pleader in section 2. An Advocate who b not an Advocate
of a Chartered High Court is in these matters on the same footing
as a >rakil or pleader and the only difference in these matters
between Advocates of a Chartered High Courtand otherpersons
coming within the definition of pleader is that such Advocates
need not be appointed in writing and can withdraw from a
suit or appeal without the leave of the Court. There is at
present no rule as to how an Advocate of a Chartered High
Court should give notice to this Court that he has withdrawn
from an appeal or other proceeding in this Courtand we are not
competent ou such an occasion as this to prescribe any rule but
we may point o.ut that a mere refusal to accept notice cannot
ordinarily be treated as equivalent to notice to the Court that
Counsel ha^ withdrawn from an appeal or other proceeding.



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Vol. VILJ THE OUDH CASES, 307

FIRST CIVIL APPEAL, No. 93 OF 1903. *



B^are Mr* WelU and Mr. Chamier.



Thakur Durqa Singh (Defendant) v. Sbth Jai Dayal 1904.
(Plaimif). ^^«^- 1^-

Purekase of moriffo^or^* righU by mortgagee at sale in eaecur
turn of decree of third party — Mortgagor's rights^ purchase by mort*
9^V^ o/y far fair prioe-^Transfer of Property Act^ s. 99 — Leave
of Court to bid at auction sale-^Code of Civil Procedure^
s. 294 — Trusts Act^ ss. 88 and 90 — Execution of decree.



The app«Uant and three other persons obtained a money-decree against
the owner of a village in execution of which they attached the village on May
€th 1899. B and another who had likewise obtained a money-decree against
the owner of the Tillage attached it on May 26th 1899 and had it pat up for
asle on October 20th 1900 when it was knocked down to the respondent fbr
Bs. 14,633. The respondent was at the time mortgagee of the tillage and his
mortgage was entered in the proclamation of sale as an encumbrance on
the property. It was not suggested that the price paid was less than the market
valne of the viUage, or that the respondent was guilty of any misconduct.

HMy that the purchase of the mortgagor's rights by his mortgagee, the
respondent, extinguished the mortgagor's right to redeem, and that therefore
the mortgagor, had no rights which oould be put up for sale in execution of
the decree held by the appellant.

Within the meaning of ss. 88 and 90 of the Trusts Act a mortgagee does not
avail himself of his position as such merely by bidding at an auction for his mort-
gagor^ property, nor does he gain an advantage for himself within the
"■waning of those sections when he pays a fair prioe for the property ; such a
piaefaaae has the same effect as a purchase made by a stranger ; and neither
8. 294 of the CivU Procedure Code nor s. 99 of the Transfer of Property
Act applies.



For Appbllant.— The Hon'We B. Sri Ram and B. Ramapal
Ram.

For Bsspokdb^t« — B. Basdeo Lai and B. Ishwari Pershad.

Chamier, A. J, C. — This was a suit by the respondent

(or a declaration that manzah Gaddipnr which he had

* Against -the decree of M. Mohammad Taj-nd-din, Subordinate Judge,
Bis wan, District Bitapur, dated 22ad May, 1903,



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9B THE OUDH CASES. [Vol. VII*

urchased at an auction sale held on October 20th 1900 is nok
able to be sold in execution of a decree held by the appellant
nd others. The facts are as follows : — The appellant and
bree other persons who were his co-defendants in the Court
elow obtained a money decree against the owner of the
illage in execution of which they attached the village on
Hay 6th 1899. Brij Behari Lai and another who had like-
vise obtained a money decree against the owner of the village
ttached it on May 26th 1899 and had it put up for sale on
)ctober 20th 1900 when it was knpcked down to the respon-
lent for Rs. 14,633. The respondent was at the time mort-
gagee of the village and his mortgage was entered in the
)rocIamation of sale as an encumbrance on the property.
Phere is no evidence and it is not even suggested that the
irice paid was less than the market value of the village. Nor
s it suggested that the respondent was guilty of any mis-
U)ndnct or that there was any irregularity in the conduct of
5he sale. The contention advanced by way of defence in the
LJourt below and in support of the appeal to this Court is that
lie purchase of a mortgagor's rights by his mortgagee at an
luction sale does not extinguish the mortgagor's right to
redeem unless the purchase is effected in execution of a decree
^or sale obtained by the mortgagee and the purchase is made
with the leave of .the Court under s. 294 of the Code of Civil
Procedure, and that as the purchase made by the respondent
did not comply with these conditions the owner of the village
in question still has rights which can be put up for sale in
execution of the decree held by the appellant and his
co-defendants.

Babu Sri Ram relies upon the decision in Eriuappa v.
Commercial and Land Mortgage Dank Ld, (1) where a mortgagee
after having obtained a decree for sale on a mortgage pur-
chased a portion of the mortgaged property at a sale held in
execution of a money decree obtained by a third person. The
Court held that the purchase had not extinguished the mort-

(1) I, L. R., 23Mad,, 377..



3
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Vol. VII.] THE OUDH OASES. 309

gagor's right of redemption in the portion so purchase J. It jj^j^^^g^jn j^
distinguished the case of Shaw v. Bunnt/ (1) where a second i;.

mortgagee had purchased at a sale held by a first mortgagee, DajaL
and observed that a mortgagee purchasing under the circums-
tances of the case before it gained a substantial advantage t6
the prejudice of his mortgagor because the mortgagor was
thereby deprived of the right of redemption and of the iitwa
and opportunities for redemption which the law allows to a
mortgagor in a suit brought by a mortgagee on his mortgage,
and that in such a case the mortgagee must be looked upon as
having availed himself of his position as mortgagee to obtain
an undue advantage over the mortgagor contrary to the prin-i'
ciple underlying section 99 of the Transfer of Property Act and
expressed in section 88 of the Trusts Act. It is evident from
the judgment that the Court was disposed to adopt the view of
Lord Justice Turner in Shato v. Bunny although that learned
Judge finding no authority in support of his view ultimately
concurred with the rest of the Court. The decision in
JErusappa v. The Commercial and Land Mortgage Bank Ld. con-
flicts with the decision of the Full Bench in Bisheshur Dial v.
Ram Sarup (2) and probably also with the decision in Fahiraya
y% Gadigaya (3) and the correctness of it was doubted in Sesha
Ayyar v. Krishna Ayyangar (4) which was the case of a pur-
chase by a second mortgagee at a sale held in execution of a
decree on the first mortgage. The decision of the Madras
High Court in Erusappa v. The Cammercial and Land Mort-
gage Bank seems to me to stand alone. The learned Judges
who decided it relied upon the case of Martand v. Dhondo (5)
but that was a case of a purchase of the kind now forbidden by
section 99 of the Transfer of Property Act and the mortgagee
had purchased secretly and at an undervalue. The passage in
the judgment so much relied upon by Babu Sri Bam about
" the impossibility of a mortgagee by such sales and purchases
" as these freeing himself from his liability to be redeemed "



(1)


2 DeQ.


J. and S.


468.




(2)


I. L.


R.


22 AU.,


284.


(3)


1. L. K


, 26 Bom


,88.




W


I.L.


R.,


24 Mad.


, »6,






(5)


I;L.


B.,


22 Bom.


,624.









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*10 THE OUDH CASES. [Vol. VH.

Tbaknr
Dorga Singh obyionsly'does not refer to o porcbade of the kind with which

Beth Jai ^^ ^^^ ^<>^ concerned. The jadgmeni of their Lordships oC
^^^* the Privy Council in Raja KUhendatt Bam v. Edja MunUaz AU
.Khan (1) shews that it is not every purchase by a mortgagee
,of property indaded in his mortgage which is invalid and the
same appears from sections 88 and 90 of the Trnsts Act It is
only when a person in a fiduciary position or a qnalifi^ owner
gains an advantage by availing himself of bb (xisition that lie
mast hold the advantage so gained for the benefit of the
persons interested in the property. Section 294 of the Code
of Civil Procedare prohibits a pnrchase by a decree-bolder
except by leave of the Conrt and section 99 of the Transfer of
Property Act prohibits a mortgagee from bringing die mortgaged
property to sale in execntioa otherwise than in a sail brought
by him under section 67 of that Act. As long ago as 1870,
Macpherson J. called attention to the risk to the mortgagor
which results from allowing the mortgagee to bid at an auction
sale of the property mortgaged to him [see S. Jf. Kamini DM
y. Ram Lochan (2)J and the Law Reports contain many instances
of purchases of portions of mortgaged property under circums-
tances similar to those of the present case which were held or
assumed to be valid, but the Tjegislature has not yet prohibited
such purchases. A mortgagee may by private treaty pur-



chase the whole or any part of an estate mortgaged to him
and I see no sufficient reason for holding that a purchase by
faim at auction for a fair price should not have the same effect
as a pbrcfaase by a stranger* It is beyond doubt that a mort-
gagee may and often does know more than other bidders about
the value of the property but on the other band strangers are
chary of buying property subject to a mortgage and it often
happens that the mortgagee will pay more for the property
than any stranger. Therefore if a purcha^ by a mortgagee
is prohibited or does not extinguish the right of redemption
the mortgagor will often suffer a loss. The illustrations io
sections 88 and 90 of the Trusts Act shew I think that it is not
every purchase by a mortgagee which comes within those sec-
0) I. L. B., 6 Cal., 198 (P. C,) (2) 6 B, L. R., 460,



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VoL.Vn.] THE OUDH CASEa Sll

. Thaknr

tioDS or ihe prmoiple on which they rest bnt only where the Durga Singh

mortgagee (1) avails himself of his position as sach and (2^ gains geth Jai

an advantage for himself in derogation of the rights of other l^ayai*

persons interested in the property. I see no jastification for

haldmg that a mortgagee avails himself of his position as sach

by merely bidding at an auction or that he gains an advantage

for himself within the meaning of those sections when be pays

a price which is not only the foil value of the property but is

higher than any other person was prepared to pay at the sale.

I woold therefore dismiss the appeal with costs*

Wells, 0. J. C. — I am of opinion that, had the Legislatnre
contemplated that a purchase by a mortgc^ee of his mort-
gagor's rights should be invalid for no other reason than that
the purchaser is a mortgagee, such a purchase would have been
distinctly prohibited by law. I concur in the order proposed,
by my learned colleague*



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THE OUDH OASES. [Vol. VIL

JSECOND CIVIL APPEAL, No. 50 OF 1904.^



Before Mr. Wells.



BoDHA Singh {Defendant) v. Ram Sumran (Plaintif).



Right of occupancy in land sold in execution of decrePy
tffciff^of — Oudh Laws Acty s. 25,



Hie plaintiff saed for cancelment of a mortgage in faTour of the defendant
Theld certain proprietary rights which were sold in execution of a
e, and the land in question was reserved to him under s. 25 of the Oudh
Act, the plaintiff being th^ proprietor. Held, that a person to whom
ling has been reserved under s. 23 of the Oudh Laws Act, has n>thingbat
lit to cultiyate and occupy, and that though his rights are not governed
5 of the Oudh Rent Act be is in no better position than an occupancy
it to whom that section applies. Held therefore, that the mortgage in
ir of the appellant was invalid.



For Appellant. — Mr. E. Mamtel.
For Respondent. — Babn Ishri Pershad.

Wells, 0. J. C. — The plainti£E-respondent in this case sned
:;ancelment of a mortgage executed in favoar o£ the appellant
me Tirbhawan. Tirbhawan held certain proprietary rights
3h were sold in execution o£ a decree, and the land now in
ition was reserved to him in occupancy right under section
f the Oudh Laws Act. The plaintiff is now in the position
le proprietor, and the Court below held that Tirbhawan's
tgage was illegal as he had no transferable right.

The only point urged in appeal is that land, in which occu-
py right has been reserved under section 25 of the Oudh
^s Act, is not on the same footing as land to which section

the Oudh Rent Act applies, and that there is nothing to
V that rights reserved under section 25 are not transferable.

' Against the decree of Babu Kriphna Kumar, Subordinate Judge, Oonda,
I 8th December 1903, reversing the decree of M, Mohammnd Latif, Muusif,
ila, dated 17th June 1903.



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Vol. VTI.] THE OUDH CASES. 313

The pleader for the appellant has referred to Akhari Begam v. ^^^^^^^ ^\i\gh
Badri Pershad (1), but that ruling does not in my opinion Ram Sumran,
throw any light on the question now before this Court, and no
other authority has been cited. Under section 25 of the Oudh
Laws Act, any proprietor of a mahal which has been sold, who
has at the time of sale any land in his cultivating occupancy, is
to be deemed a tenant with a right of occupancy in respect of
so much of land as the Deputy Commissioner may determine.

The ordinary meaning of a right of occupancy is a right of
the tenant to occupy the land himself, and the object of the
Legislatture in enacting section 25 of Act XVIII of 1876 appears
to me to have been to save to a ruined zemindar a small holding,
by cultivating which himself he might earn a subsistence and
not be driven from his home. It was never, I take it, intended
to provide such a person with an asset on which he might
raise loans, in consequence of which he would ultimately be
left without any means of subsistence.

In the absence of any provision of law authorising a trans-
fer of his rights by a person to whom a holding has been
reserved under section 25, 1 cannot but hold that such a person



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