Gokhei Swain vs Chaitan Raut and Others

Shearer, J.—This second appeal arises out of an order, dismissing an objection, taken by certain judgment-debtors to the execution of a mortgage-decree. The judgment-debtors admitted that the land, which had been sold, and certain buildings on it, had been mortgaged by them, but they asserted that there was another building or buildings on the land, which had not been mortgaged. This building or buildings had, however, been mentioned in the sale proclamation along with the other buildings, which were admittedly mortgaged, and had, therefore, been sold. The judgment-debtors contended that, by the sale, the title to this building or buildings did not pass to the mortgagee, and, in consequence, he was not entitled to be put in possession of them under the writ of delivery of possession which he had taken out.

The learned Munsif came to the conclusion that the property, which had been sold, was no more and no less than the property which had been mortgaged and dismissed the objection on the merits. On appeal, the learned District Judge expressed some doubt as to the correctness of the conclusion of the learned Munsif, but did not express any final opinion of his own as he considered that the objection was not maintainable and ought to have been dismissed in limine. The attention of the learned District Judge was, apparently, not drawn to certain decisions of their Lordships of the Judicial Committee, which are directly in point.

In Ramabhadra v. Kadiriyasami AIR 1922 P.C. 252 the legal representatives of a certain mortgagor instituted a suit to recover possession of certain property, on the ground that it was not part of the property, which had been mortgaged and eventually sold in execution of a decree. The contention put forward on their behalf was precisely the same as that which is put forward here, namely, that, through some mistake or contrivance on the part of the mortgagee, the property, advertised to be sold in execution of the mortgage decree, had been more extensive than the property actually mortgaged. Their Lordships of the Judicial Committee, in dismissing the suit, observed that the mortgagee could and ought to have raised the contention, that was put forward in the suit in the proceedings in execution of the decree.

In AIR 1925 86 (Privy Council) a mortgagor who had obtained a decree for redemption, asserted that under the terms of the mortgage, he was entitled to be put in possession, not merely of the property mortgaged, but of certain accretions to it. This contention was put forward in proceedings in execution of the decree, and their Lordships of the Judicial Committee took the view that the Court, executing the decree, had jurisdiction to decide it. The learned District Judge relied on the decision of a Full Bench of this Court in Tribeni v. Ramasray. AIR 1932 Pat. 80. The report of this decision covers more than 100 pages, and the very brief head-note is, I think, calculated to mislead the subordinate Courts and has, in fact, misled the learned District Judge in this particular case. What was there decided was that a decree-holder auction-purchaser, who had omitted to obtain a sale certificate or take out a writ for delivery of possession, was entitled to institute a suit for possession within twelve years of the date of the sale. It was not incumbent on him, it was held, to take out a sale certificate and apply for a writ for delivery of possession within three years of the sale. The decisions of the Privy Council, to which I have referred, and other decisions on the point, were referred to and distinguished.

For instance Jwala Prasad J. at p. 707 of the report, said this:

Now a question might arise whether the property of which possession is sought by the decree-holder and which is in possession of the judgment-debtor was actually sold or not. Such a question would be one relating to the execution of the decree and, as such, would be barred by Section 47 of the Code. Instances might be multiplied where questions raised in the suit have been held to be barred by Section 47 as relating to the execution, discharge or satisfaction of the decree. The present is not a suit of the nature as that in the cases referred to above. It is a simple suit for possession based on the title derived from the purchase at the Court sale where no question relating to the execution, discharge or satisfaction of the decree has been raised. The sale or the confirmation thereof has not been challenged. Such a suit is not barred by Section 47.

Again, Ross J. at p. 720 of the report, said this:

Now it may be that a question might arise whether the property of which possession is sought and which is in possession of the judgment-debtor was actually sold or not, and this would be a question relating to the execution of the decree. It was a question of this nature that was before the Judicial Committee in Ramabhadra v. Kadiriyasami AIR 1922 P.C. 252.

The learned District Judge was thus, in my opinion, in error in dismissing the objection as not maintainable. That being so, the appeal must be allowed and the case must be remanded to the lower appellate Court to be disposed of in accordance with law. Costs will abide the result.