Jatru Pahan and Another vs Ambikajit Prasad

Manohar Lall, J.—This is an appeal by the decree-holder against an order passed by the learned Judicial Commissioner of Ranchi by which he, in appeal, has reversed the decision of the learned Munsif and has held that the opposite party, respondent here, is entitled to take objection to the validity of the decree in the circumstances about to be stated. The decree-holder obtained a mortgage decree against one Bikramajit Prasad. At the time of the execution of that decree Bikramajit Prasad was dead and Ambicajit Prasad and some others were substituted as legal representatives of the deceased judgment-debtor. Ambicajit Prasad took objection u/s 47, Civil P.C., that either the interest of the judgment-debtor had ceased by his death, or that the judgment-debtor had no right whatsoever to execute the mortgage bond on the basis of which the mortgage decree under execution had been passed.

The learned Munsif had no difficulty in disposing of these objections as being untenable. He pointed out that the objection that the mortgagor had no right to alienate or to mortgage the property should have been raised in the original suit itself and since the decree was final, the executing Court cannot go behind the decree. He then goes on that if there was a stipulation in the partition-deed that Bikramajit Prasad was absolutely restrained from alienating the property, such a condition was void u/s 10, T.P. Act.

Against this decision there was an appeal which was disposed of by the learned Judicial Commissioner, who, while discussing the matter under point No. 1 whether the application could come u/s 47, Civil P.C., or whether a separate suit should be instituted, observed that he could not understand any point "in the attempt on the part of the decree-holder to put off consideration of the question simply by saying that there should be a fresh suit. The question for decision will be the same, what exactly Bikramajit Prasad could mortgage, and whether the condition was void u/s 10, T.P. Act, and whether after his death the decree has any force against the property." Accordingly, he overruled the decision of the learned Munsif and held that the judgment-debtor had no right whatsoever to transfer the property by way of mortgage and the mortgage decree could not be executed against the objector. Hence, this second appeal to this Court.

It is now settled by a number of decisions that in the circumstances like the present, the Court executing a mortgage decree which directs the sale of a specific property cannot allow the judgment-debtor or his legal representatives to object that such a decree is not now capable of execution either because the judgment-debtor has no right originally to execute the mortgage bond upon the basis of which the decree has been passed or that since the date of the mortgage decree owing to the death of the judgment-debtor or otherwise the judgment-debtor had no longer any interest in the property. The matter has been put very clearly in the judgment of Das J. in Hitendra Singh and Others Vs. Maharajadhiraj Sir Rameswar Singh Bahadur and Others, . The learned Judge referred to a number of authorities of the other High Courts which completely supported him in that conclusion. That view was approved by the learned Chief Justice to whom owing to the dif. ference of opinion on other points, the appeal was referred for a decision. At pp. 600-and 601 the learned Chief Justice says:

As pointed out by Das J. the application made by them to set aside the sale on the ground of irregularity u/s 311 of the old Code, although purporting to be an application u/s 344 also, did not in fact raise any question coming under the latter Section and did not cover the point now raised. In my opinion, it was not open to the appellants to raise the question in those proceedings. The executing Court is bound to execute the decree and could not, apart from fraud, consider whether the decree ordering sale of the property was one which the trial Court ought rightly to have passed. The representatives of the mortgagor could not successfully reopen the question which, if it were open at all, should have been urged before the trial Court.

Mr. B.C. De appearing on behalf of the respondent sought to draw a distinction by relying on the case in Punchanun Bundopadhya v. Rabia Bibi (90) 17 Cal. 711 and the cases which follow this Full Bench case, but that Full Bench case and the cases which follow that case deal with execution of a money decree and not of a mortgage decree. It was argued that the principle which should be applied is exactly the same whether the decree is a mortgage decree or a money decree. I do not agree with this contention because it would be easily noticed that in one case the decree is not a decree which directs the sale of any specific property and the decree-holder has to execute it by attaching same property. When he attaches the property the person who. claims to be the owner of the property on the date of the attachment can come forward and say that this is not attachable in execution of a decree which has not been passed against him. But in the other case the decree itself directs the sale of the specific property and in such a case there is no attachment.

In the circumstances, the judgment-debtor or his legal representative cannot be heard to say that the decree which directs the sale of the property should not foe put into execution because on account of certain circumstances either the judgment-debtor had no interest at the date of the mortgage, or his interest has ceased since the date of the mortgage decree. In a recent case in Ramaswamy Chettyar v. U Tun Tha AIR 1940 Rang. 161 the same view has been taken and the cases relied upon by Das J. in Hitendra Singh v. Rameswar Singh Bahadur AIR 1925 25 have been noticed with approval. At the end of p. 162 an observation of the Allahabad High Court in Sanwal Dal v. Bismillah Begam (97) 19 All. 480 was quoted with approval:

Where, however, the decree is a decree for sale under the Transfer of Property Act, (now replaced by Order 34, Civil P.C.), the Court executing the decree must sell the property decreed to be sold and leave anyone objecting to the execution of the ?decree against that particular property to such remedy as he may have by a suit or by resistance to the possession of the purchaser.

This is the correct view of law. In my opinion, the learned Judicial Commissioner was wrong in reversing the decision of the learned Munsif. It was suggested by Mr. De that the present application on behalf of the respondent should be treated as if it was a plaint in a suit as provided by Section 47, Sub-section (2), Civil P.C. But considering all the circumstances, it is desirable that the matter should be agitated in a fresh suit if the aggrieved party is so advised.

The result is that the appeal must be allowed, the decision of the learned Judicial Commissioner set aside and the decision of the learned Munsif restored. The objection u/s 47 must be dismissed. The appellant is entitled to his costs throughout. Mr. De desires it to be noted that his client does not claim this property as an heir of the judgment-debtor but claims in his independent right the property sought to be sold in execution of the mortgage decree. The other side does not accept this statement as correct.

Das, J.

I agree.