Mt. Amiran and Another vs Mt. Kaniz Aisha and Others

Agarwala, J.—One Fasihunnissa sued on the foot of a mortgage for sale of property which had been mortgaged to her assignor. The mortgagor being dead his heirs were made defendants in the suit. One of the heirs, a son of the mortgagor, was the husband of the plaintiff. After the decree had been passed the decree-holder died leaving her husband, her father and two minor daughters. The interest of the decree-holder''s father in the decree was transferred to his nephew by a deed. The application for execution of the mortgage decree was made on behalf of two minor daughters of the deceased decree-holder. Neither the decree-holder''s husband nor her father was a party to this application.

At the execution sale the mortgaged property was purchased on behalf of the two minor daughters and the sale was in due course confirmed. Two of the judgment-debtors then applied to set aside the auction-sale. An application to set aside the sale was also made by the transferee of the interest of the decree-holder''s father. Both the applications were rejected by the executing Court and the decision of that Court was upheld in appeal by the District Judge. Misc. Appeal No. 332/33 arises out of the application by the two judgment-debtors and Misc. Appeal No. 290/33 arises out of the application by the transferee from the decree-holder''s father.

A preliminary objection was taken by the learned advocate for the respondent on the hearing of both these appeals. With regard to Misc. Appeal No. 332/33, the learned advocate for the respondent contends that as the application in which this appeal arises was an application under Order 21, Rule 90, and as an appeal has already been heard and disposed of by the District Judge, no second appeal lies to this Court. The learned advocate for the appellant however argues that his application was not only under Rule 90, but was also an application u/s 47, Civil P.C.

Although the objection filed in the executing Court by the appellant judgment-debtors was headed u/s 47 and under Order 21, Rule 90, it was in substance and in terms an application merely to set aside the sale on account of irregularities. In the circumstances the second appeal is not maintainable. We are asked however to treat the memorandum of appeal as an application for revision u/s 115 of the Code. It is argued that there was material irregularity in the exercise of its jurisdiction by the executing Court. The material irregularity alleged is that a part of the mortgage debt having been extinguished by reason of the fact that one of the heirs of the mortgagor also had, by the death of the decree-holder acquired an interest in the decree, the other heirs of the decree-holder should not have been allowed to execute the decree in full.

It appears that no objection to the execution proceedings was taken by the appellants in Misc. Appeal No. 332 and when they applied subsequently their objection was not to the validity of the execution proceedings, but to the validity of the sale held in the course of those proceedings. In these circumstances, in my opinion, the applicants are not entitled to have the revisional powers exercised in their favour and the application must be dismissed.

With regard to Misc. Appeal No. 290/33, the preliminary objection taken by he learned advocate for the respondents is that the question raised in the proceedings out of which this appeal has arisen was not a question "between the parties to the suit" within the meaning of Section 47, Civil P.C., but between two of the representatives of the deceased decree-holder and therefore that no appeal lies.

It was contended by the learned advocate for the appellant that "parties to the suit" in Section 47 may include representatives of parties to the suit inter se. The authorities however are clear that that phrase in Section 47 refers to parties who were opposed to each other in the suit. The appeal must be dismissed. The learned advocate for the appellant in this appeal prays that the memorandum of appeal in this appeal may also be treated as an application in revision and contends that the order of the Court below is vitiated by material irregularity in the exercise of its jurisdiction.

It is contended that the two daughters of the decree-holder were debarred from executing the whole decree without stating either that they were the sole decree-holders or that they were executing the decree on behalf of all the decree-holders. Reliance was placed on Rule 15, Order 21. That rule refers to a decree which has been passed jointly in favour of more than one plaintiff. The decree in the present case was passed in favour of one person only. The authorities on which the learned advocate relied for showing that Rule 15 applies to the present case, on examination, appear to have no bearing on the question and it is therefore unnecessary to refer to them in detail. Reliance was next placed on Rule 16, Order 21.

It was contended that no notice had been issued to the judgment-debtor in terms of the first proviso to that rule. That proviso requires that where a decree has been "transferred by assignment," notice of the application shall be given to the transferor and to the judgment-debtor. In this case there has been no assignment. But it is contended that a transfer by operation of law is itself an assignment. In my opinion, an examination of the first paragraph of the rule negatives this contention. The first paragraph provides:

Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it * * *

The first proviso then requires a notice in the case of a transfer of the decree by assignment, but there is no such requirement in the case of transfer by operation of law. It is incredible that if the proviso was intended to apply both to a transfer by assignment and to a transfer by operation of law the words "by assignment" would have found place in the proviso. The last contention of the learned advocate for the appellant was that the heirs of the judgment-debtor No. 1 who had died before the execution sale took place, were not brought on the record. This circumstance however in no way vitiates the sale or provides the present applicant with a grievance. I would therefore dismiss the application for revision. In both oases the opposite party is entitled to costs.

Saundera, J.

I agree.