Bashisht Narain Singh vs Ram Pukar Singh and Others

Manohar Lall, J.—This is an appeal by the judgment-debtor, who is a subsequent transferee from the mortgagors, who is aggrieved by the concurrent decisions of the Courts below by which they overruled his objection to setting aside the sale.

The facts are these. The plaintiff obtained a preliminary mortgage decree on 26th February 1937 and on 19th September, of the same year, he having applied for the decree to be made final and after notices were served on all the parties, including the appellant (who as I have already stated was a subsequent transferee from the mortgagors) but without waiting for the decree being made final applied to execute his decree. Notices of this application were also served upon all the parties including the appellant. The sale in execution of the decree was held on 7th January 1939. The decree, however, had been made final in the meantime on 14th January 1938. On 7th May 1940, the appellant filed an application u/s 47, Civil P.C., challenging the validity of the entire execution proceedings which were started in 1937. The main objection was that the Court had proceeded to sell the property not in execution of a final decree which, as already observed, was passed after the application for execution had been made, but in execution of a preliminary decree. It was, therefore, argued that the Court had no jurisdiction to sell the property in execution of a preliminary decree and, therefore, the sale should be set aside. The Courts below, however, have concurrently come to the conclusion that as the decree in question was made absolute long before the sale there is no merit in favour of the appellant. Hence the second miscellaneous appeal to this Court.

A preliminary objection was raised that no appeal lies and reliance was placed upon the decision of this Court in Sheikh Maula Bux Vs. Raghubar Ganjhu, , but it is unnecessary to consider this question as I am of opinion, that the view taken by the Courts below is correct.

In (Mahtha) Madan Singh and Others Vs. Kumar Kamakhya Narain Singh, . Wort, J. in delivering the judgment of the Division Bench pointed out that where it was the duty of the Court to pass a final decree in terms thereof and failed to do BO either accidentally or otherwise, this should not deprive the decree-holder of the fruits of his action.

In that case an ex parte decree was made which included a direction that mesne profits should be ascertained but the necessity for this enquiry was obviated when the parties entered into a compromise three years later and they informed the Court of this fact namely, that the defendant agreed to pay a certain sum by 12 instalments to the decree-holder but the Court did not pass any decree giving effect to this compromise. When the decree-holder proceeded to execute his decree for the amount which the judgment-debtor had agreed to pay, an objection was raised that there was no decree. Wort, J. referred to the case in Chhaganlal Sakarlal Vani Vs. Jayaram Deoraj Thakar, where it was held that an omission to prepare a final decree in a mortgage action was not fatal to the execution of the decree and observed that,

that case is a stronger one than the one which we have before us having regard to the fact that under the Code it is necessary for a decree-holder mortgagee to make an application for the preparation of a final decree.

In Epoor Ramasamy v. Kandadai Rangamammar Iyengar AIR 1914 Mad 365, it has been held by the Madras High Court that,

where a preliminary mortgage decree, which is not capable of execution, is executed with the knowledge but without any objection on the part of the judgment-debtor, it cannot be afterwards pleaded that there was no decree under which the property could be sold.

In that case the very contention raised in the present case was put forward and it was contended that the decree which was sought to be executed was only a preliminary decree and that according to the decision of the Privy Council in Ashfaq Hussain v. Gauri Sahai (11) 33 All. 264 which has been followed by the Madras High Court in Yamani Chinna Seshaya v. Varanasi Pepaya (12) 15 I.C. 732 and Venkata Perumal Raju Bahadur v. Ausikesvalu Reddi (12) 23 M.L.J. 675 a preliminary decree is not capable of execution and it is only the decree absolute under Rule 5 of Order 34, that can be executed. The learned Judges observed as follows:

In this case it is clear that no decree absolute under Rule 5, has been passed, but we think it is unnecessary to decide this question because this contention is not available to the appellants. On the decree-holder''s application for the execution of the decree, notice was issued to the judgment-debtors (appellants) and an order was passed directing the sale of the property; no objection was taken to the sale on this ground. It has been repeatedly held that even though a relief may not have been granted by the decree, yet if in execution proceedings a Court holds that a party is entitled to such relief under the decree, it is not open to the parties afterwards to contend that no such relief has been awarded and the matter is res judicata. We are therefore of opinion, that in this case it is not open to the appellants to plead that there is no decree under which the properties could be sold.

In Banu Mal v. Paras Ram (25) 12 AIR 1925 Lah 640 a case from the Lahore High Court, it was held that:

Even though a relief may not have been granted by the decree yet if in execution proceedings a Court holds that a party is entitled to such relief under the decree, it is hot open to the parties afterwards to contend that no such relief has been awarded and the matter is res judicata.

It was further held that after a preliminary decree for sale has been passed, an application by the decree-holder for sale of the property may be taken to be an application for an order absolute fort sale thus getting over the difficulty when there is no final decree.

In the present case as I have already observed the decree was made final long before the date fixed for sale. It was also pointed out on behalf of the respondents that in this case another sale proclamation was actually issued on 4th December 1938 that is to say after the decree was made final. Even if therefore it is assumed that there was an irregularity the judgment-debtor or the appellant did not raise any objection to the sale and no prejudice whatsoever has been pointed out. It was merely an irregularity and it cannot be held that the sale was void. For these reasons the appeal fails and must be dismissed with costs.