Matiur Rahman Khan vs Sonu Lal and Others

Fazal Ali, J.—This is an appeal from an order of the Subordinate Judge of Gaya in a proceeding under Order 21, Rule 90, Civil P.C. by which be has declined to set aside a sale held in execution of a mortgage decree obtained by the respondents against the appellant. The property which was the subject of the mortgage was described in the mortgage bond as well as in the decree as a five annas mukarrari share bearing touzi No. 4548 and separate account No. 60. The decree-holder discovered, when the decree was under execution, that there was a misdescription of the property both in the decree and in the mortgage bond and drew the attention of the executing Court to this misdescription.

On 31st July 1935, the executing Court held after considering the evidence produced before it, that there was in fact such a misdescription. Against this order, the appellant judgment-debtor did not prefer any appeal and accordingly the executing Court proceeded to sell the property as described in the execution petition of the decree-holder. The sale is now assailed on two main grounds, namely (1) that the executing Court could not go behind the decree and could not therefore sell the property as described in the petition for execution which according to the appellant is different from the mortgaged property in respect of which the decree was passed and (2) that the property sold has not been valued at all under Order 21, Rule 66.

The main controversy between the parties centres round the question as to whether the mortgaged property appertained to separate account No. 60 or separate account No. 88. This question was raised before the executing Court before the sale and after giving elaborate reasons in support of its view, the Court held on 31st July 1935, that it appertained to separate account No. 88. Now it is well settled that an executing Court has no, right to go behind the decree or in any way to add to or amend the terms thereof. It has to execute the decree as it stands and any amendment thereof can be made only by the Court which passed the decree. It is however the duty of the executing Court to ascertain the property which is the subject of the decree and for this purpose it is entitled to look at the paramount description of the property.

It is clear from the decree as well as the mortgage bond on which the decree is based that the mortgaged property was a five annas share in mukarrari interest belonging to the mortgagor situated within the milkiat of Akhauri Premnarain and others. The executing Court in construing the decree rightly regarded this in the special circumstances of this case as the paramount description of the property in question and so proceeded to execute the decree against the property which answered this description.

The appellant contends that the property which was the subject of the decree appertained to separate account No. 60, but it has been found that separate account No. 60 does not relate to his mukarrari interest nor to any interest within the milkiat of Akhauri Premnarain. Besides, it is clear from the mortgage bond as well as the decree that what was mortgaged was a five annas share, but it appears that in separate account No. 60 the appellant possessed only one anna and four pies share of proprietary interest. It appears to me that the executing Court did not exceed its jurisdiction in executing this decree inasmuch as it has not been shown that the property sold was different from the property in respect of which the mortgage decree has been passed.

The second ground taken by the appellant seems to me to be also without substance. The last execution petition was filed by the respondent-decree-holders in February 1935. It cannot be seriously disputed that the value which was fixed by the Court was the value of the property which was mentioned in the execution petition. It is also dear from the judgment of the learned Subordinate Judge that at the time of the valuation of this property an objection had been filed by the appellant to the effect that the decree-holder had wrongly included the property appertaining to separate account No. 88 in his execution petition.

Thus the property which was the subject of valuation was the very property which was mentioned in the execution petition and which has been sold. As both the contentions on behalf of the appellant fail, this appeal must be dismissed with costs.

Agarwala, J.

I agree.