GANGA BAI versus VIJAY KUMAR & ORS .

Citation: [1974] 3 S.C.R. 882 · Decided: 09-04-1974 · Supreme Court of India · Bench: M. HAMEEDULLAH BEG

Cited by 7 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

882 
GANGA BAI 
v. 
VIJAY KUMAR & ORS . 
. April 9, 1974. 
[M. H. BEG AND Y. V. CliANDRACHUD, JJ.] 
C.P.C.-Anrendnrent of the ~fe1110 of Appeal after 7} years 
lvitho1.et 
any 
application of condonatio11 of delay or good cause sho1vn-Whether proper-
Appeal againrt a 111ere /illding of fact-iV/iether niaintainable. 
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In 1953~ defendant 1 executed on behalf of himSelf and his minor son, 
defendant 2, a deed of mortgage in favour of the plaintiff. Deft. 3 ls also a son 
of deft; 1 who was born after the mortgage deed. In 1956, a regd. deed of par-
tition \\'as executed amongst the defendants under which the mortgaged property· 
..._ 
\Va'> allotted to the share of <lefts 2 & 3. 
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Thereafter, the mortgagee filed a civil suit to ·enforce the niortgage and the 
trial court passed a preliminary decree for sale of deft. l's interest in the mort-
gaged property. It held that part of the consideration for the mortgage was not 
su.pported by legaL necessity and the balance of the debt incurred was tainted 
'\\-ith immorality. Therefore; the debt was. held not binding on the· one half 
share of deft. 2 in the mortgaged property .. As regards the partition, the trial 
court held that it was a colourable transaction effected to delay or defeit the 
creditors. · 
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Being a·ggrieved, pltf. filed an appeal (40/59) in the I-Ugh Court. Deft. 1 & 
2 against '\Vhom the suit was dismissed, also filed an-appeal (72/59) apinst the 
tir:zdi'ng of the trial court that the partition \•las a colourable transaction. 
During the pendency of these 2 appeals, the preliminary decree was made 
final by the trial court and in 1960, the plaintiff purchased with the permission of 
the court. a joint half share of the mortga£;ed property in full satisfaction of his 
decree. Thereafter, the auction sale \Vas confirmed and the ~laintiff '\Vas put in 
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joint possession of the property. -
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Thereafter, the appeals filed by the- plaintiff and defendants 2 and 3 came up 
for hearing and while the appeals were part-hard, defts 2 & 3 applied on August 
2, 1966 (nearly 71; years after filing the appeals). applied for amendment of their 
~femorandum of appeal in first appeal No. 72/59 and sought permission of the 
I1igh Court to challenge the preliminary decree passed by the trial COurt. The 
plaintiff opposed that amendment and applied that she did not desire to prose· 
cute first appeal No. 40/59 filed by her. 
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The High Court did not pass any orders either on the application for amend· 
n1cnt or the plaintiff's appeal, but adjourned the hearing of the appeals for 3 
mouths to enable defendants to pay the am_ount due under the preliminary decree. 
Accordingly the defendants deposited the money towards the satisfaction of the 
preliminary decree . 
. 1\fter about 2 years, another dh·ision bench of the High Court, alJov.·ed the 
amendments of the defendants' iremo of Appeal in .1\ppeal No. 72/59 ancl 
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allow~d time to the 'defendants to pay the deficit Court fee. which they paid. The 
High Court,"then took the 2 appeals for hearing and dismissed appeal No. 40/59 
for non-prosecution and confirmed the findings of the trial court in favour of the 
defendants. 
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As regards appeal. No. 72/59, the High C.ourt held that in vfew of Order 41, 
Rule 2 C.P.C., it '\Vas open to the de_fendants. '\Vith the leave of the court, to urge 
additional grounds without amending the Pwiemo of Appeal and therefore, the 
objection raised by the plaintiff that amendment should not be allowed, cannot 
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l:io upheld'. 1.be High Court further held that the defendant-." appeal was com~ 
pctent :l.nd they had the righ,t to reeeem the mortgap:e. 
On the merits. the Hi~b 
Cburt held that the partition '\\'as real and genuine. In the result. the High Court 
:set aside the preliminary decree as also the fmal deme- a11d with it the auction 
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GA.:<:GA BAI v. VJJAY KUMAR (Chmuf!'.aclzud, I.) 
883 
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sale in favour of 111~ plainliff. The High Court passed a 
fresh preliminary 
Jecree under order 34, Rule 4 C.P.C .• directing that that the plaintiff was entitled 
to recover Rs. 34,~8~/- and odd .and directed the defendants to pay the entire 
decretal amount '''Ithrn 6 months of th~ date of decree. 1he plaintiff questions 
the correctness of the decree b~fore this Court. 
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The appeal filed by defendants 2 & 3 \Vas against the finding recorded by the 
trial court that the partition between deft. 1 and hi" sons was a colourable trru:Jii;-
nc~

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