Bilat Rout vs Mahbub Safi and Others

Rowland, J.—These appeals arise out of two suits brought by the same plaintiff against the same defendants. The facts are stated in some detail in the judgment of the Courts below and it is sufficient here to mention that the principal defendants Mahbub and others bad brought two mortgage suits, Nos. 2 and 3 of 1929, impleading (a) Gopal the mortgagor, now defendant second party, and (b), Bilat, puisne mortgagee, now plaintiff. Mahbub''s claim was to recover possession of the mortgage property or in the alternative to have mortgage decrees charged on the properties for the amount of his dues. In the plaints of those suits there was no prayer for a personal decree against any of the defendants. Gopal put in appearance; Bilat did not. Mahbub compromised with Gopal who consented to a personal decree. A personal decree was drawn up in each suit against "the defendants." Each of these decrees was executed by Mahbub against the personal properties of Bilat. From this point the history of each case requires to be traced separately. The points of difference do not appear clearly in the judgments of the Courts below.

In the execution arising out of mortgage suit No. 2 Mahbub put up for sale some property of Bilat which was actually sold on 10th April 1930. Bilat did not object in the execution department or apply to have the sale set aside but instituted title suit No. 61 on 7th May 1930, praying for a declaration that nothing was due from him to Mahbub; that Mahbub had no right to get a decree for money against him; that the decree and sale are null and void and inoperative and for any other appropriate relief. This suit gives rise to second appeal No. 54. In the execution arising out of mortgage suit No. 3 property of Bilat had been attached and he objected on the ground among others that there was no decree capable of being executed against him. The objection was entertained u/s 47, Civil P.C, and was decided adversely to Bilat. To save his property from sale he paid up the decretal amount Rs. 147. He then brought title suit No. 74 which gives rise to second appeal No. 55. The declarations claimed are similar to those in the other suit and he asks for repayment of the sum that he was forced to pay. The Courts below have agreed in dismissing both the suits. Bilat had alleged suppression of processes but both Courts decided that the summons and processes were not suppressed. The Courts have held that Bilat, was not personally liable to pay the mortgage money and that the decrees which were framed as personal decrees against him as well as the mortgagor were wrong in law; but that the plaintiff cannot get a remedy in these suits. The view taken by the Courts below was that money decrees were passed against Bilat erroneously, but those decrees must stand as they were passed with jurisdiction and cannot be attacked in a separate suit. The proper remedy for Bilat was to appeal from the decrees or to apply for rehearing under Order 9, Rule 13, or to move the Court in review.

In appeal it is argued that the Courts should have examined the decrees with reference to the pleadings and should have held on a construction of the decrees that they were intended to be decrees executable against the mortgagors personally and against the mortgagee only to the extent of his interest in the mortgage property. The decree, as I have stated above, was in each suit expressed to be against "the defendant," and the argument is that this must be read to mean only those defendants against whom a money decree was claimed or could be claimed in a mortgage suit, as the Subordinate Judge has pointed out:

It is clear that as the plaintiff was only a subsequent mortgagee no money decree could be passed against him.

It may be added that no claim for a money decree was made in the plaints of the mortgage suits. Therefore if the decrees are read as intended to operate as money decrees against Bilat personally, this means reading them as giving a relief which it was not only erroneous to grant if it had been claimed but which had not even been claimed. There are cases in which it has been held that a junior member of a Mitakshara family against whom a decree has been passed for a debt incurred by the karta can in execution take an objection that there is no decree capable of execution against him personally and that the decree is to be read as being passed against him to the extent only of his interest in the family property on the principle that unless a contrary intention is unmistakably expressed a Court will not be presumed to have intended the passing of an illegal decree. On the same principle I think that Bilat, was entitled to object that there was no decree capable of execution against him and was entitled to succeed in such an objection. But the further point is taken for the respondents that these suits will not lie because u/s 47 such an objection ought to be raised by an application in execution proceedings and not by a separate suit. The answer to this is in Sub-section (2) of Section 47, which provides that a proceeding u/s 47 may be treated as a suit or a suit may be treated as a proceeding. These suits can therefore be treated as proceedings between the parties subject to limitation and disposed of on merits. In suit No. 74, giving rise to second appeal No. 55, the respondent raises the further point that an objection u/s 47 was actually taken in the execution proceeding on the ground that there was no decree capable of execution against Bilat. That point succeeds. The decision of the executing Court in the objection u/s 47 bars Bilat from agitating the same matter in a second proceeding or suit. Second appeal No. 55 must therefore be dismissed with costs.

In execution of the decree in mortgage suit No. 3 giving rise to title suit No. 61 and second appeal No. 54, Bilat did not take such an objection in the execution proceeding. Therefore his case that there was no decree capable of execution against him can be entertained as an application. It was presented within 30 days of the sale, that is to say, within the period prescribed for an application to set aside a sale and there is no other ground on which relief can be refused to him. I would, therefore, allow this appeal with costs throughout giving him a declaration that there is no decree operative against him personally or capable of execution against his property other than his interest in the mortgage property and that the sale dated 15th April 1930, in execution case 1030 of 1929 is void and inoperative against him.

Mohamad Noor, J.

I agree.