Badri Narain Singh vs Dwarka Prasad and Another

Ross, J.—These are four appeals against orders of the Subordinate Judge of Gaya: Appeal No. 208 of 192Z is directed against the order of the 10th June 1922, and the other three appeals, namely, 199, 207 and 212 of 1922 are against the order of the 15th July 1912. The appeal against the order of the 10th June relates Co that portion of the order which requires the decree-holder to define the share of the sons in the properties in the sale proclamation. The other three appeals relate to the order disallowing certain objections by the judgment-debtors to the execution. In order to understand these objections it is necessary to state a few-facts.

There was a decree in a suit on a mortgage which was brought against the mortgagor and his sons and two ijaradars. The suit was decreed ex parte against the father and on compromise against the sons and the ijaradars. The defect in the proceedings was that the ex parte decree against the father was never made final; but in the High Court the parties agreed that the name of Defendant No. 1, that is, the father, should be removed from the names of the judgment-debtors against whom execution was taken out; and consequently we are now concerned only with the judgment-debtors who are parties to the compromise, that is, the sons and the ijaradars.

Now the objection to the order of the 10th June 1922 is that as the sons are of a Mitakshara joint family their shares are undefined and cannot be defined in the sale proclamation. It is to be observed however that in para. 6 of the petition of compromise which was entered into by the sons without joining with the father, it was expressly stipulated that on failure to, pay the entire money due to the] Plaintiffs, the Plaintiffs should be competent to bring the mortgaged properties to sale and realise the money. This implies an agreement on the part of the sons to put their shares at the disposal of the decree-holders and therefore amounts to a specification of their shares. The shares at that time were a three-fourths share. That has been advertised for sale and has now actually been sold. The order is therefore not open to attack in this part. The right of the mortgagee to put up the shares for sale is supported by the decisions of the Privy Council in Deendyal Lal v. Jugdeep Narain [1877] 3 Cal. 198 and Suraj Bansi Koer v. Sheo Prasad Singh [1879] 5 Cal. 148.

The other objections are against the order of the 15th July 1922. The first contention is that the debt must be proportionately reduced because the father''s share has been exempted. But the decree that is being executed is the decree on the compromise and in that compromise the parties thereto undertook to discharge the whole debt and are liable for it.

The next objection is that one son has died since the mortgage decree was passed and consequently the share ought to be reduced from three-fourths to two-thirds. But the share that is liable is determined by the mortgage and after that it cannot be subject to lapse or reduction on account of the death of one of the coparceners.

Then it is said that the Subordinate Judge has gone behind the decree in ordering the sale of the ijara interest. But the sale of the ijara interest follows as a matter of course because it was subsequent to the mortgage which is being satisfied.

The last objection was that the executing Court had no jurisdiction and that the execution ought to have been taken out in the Court of the second Subordinate Judge and not in the Court of the third Subordinate Judge, as was done in the previous execution. Whatever may have been done in the previous execution there is no doubt that the present execution has been brought in the proper Court because it relates to a pargana which is within jurisdiction of the third Subordinate Judge. And the previous execution case was transferred to the Court of the third Subordinate Judge by the order of the District Judge to whom this pargana had been assigned and therefore the present execution case was properly brought in that Court.

These were all the objections that were raised and they must all be overruled. The appeals are dismissed with costs.

Jwala Prasad, J.

I agree.