Mt. Mongi and Another vs Mahabir Pershad, Decree Holder

Kapur, J.—This is an appeal against the order passed in execution by the Senior Subordinate Judge of Delhi, overruling the objection of the judgment-debtor with regard to the existence of an order of sale in a mortgage decree.

A preliminary decree for sale was pasted or the 16th of December, 1944, by which Rs. 16,484/6/ were awarded as mortgage money inclusive of costs charges and expenses. The principal sum calculated up to the date of the decree was Rs. 15,200/- The decree alse awarded four months interest at percent per annum and future interest at 6 percent per annum on Rs. 10,000/-. On the 3rd of January 1946, the decree-holder applied to the Senior sut ordinate Judge, Delhi, for a final decree and on 8th of April, 1946, the Senior Subordinate Judge ordered "The preliminary decree is made final. The papers may be filed." But evidently no final decree was drawn up.

Appeal against the preliminary decree w taken to the Lahore High Court and another or against the final decree was filed on the 13th May, 1946, to which a note was added praying the filing of the decree be dispensed with as it had w till then been prepared. The appeals were decide by a judgment of this Court on the 15th of February 1948, and a composite decree was drawn up. Unfortunately this decree was not drawn up in a cordance with the provisions of the CPC and the forms given therein. The decree drawn up in this Court was in the following tern:

It is ordered that the appeal be accepted are preliminary and the final decrees of the Seni Subordinate Judge, Delhi, dated the 16th December, 1944, and the 8th of April, 1946, respectively as described overleaf be and the sa(sic) are hereby modified by decreasing the decree amount by a sum of Rs. 1,000/-. The Plaintiff shall now be entitled to recover a sum of Rs. 14,200/- by sale of the mortgage property. Future interest for a period of four months shall be computed at the rate 7.5 percent per annum and thereafter at the rate of 6 percent per annum. In every other respect the preliminary decree and the final decree be confirmed.

As far as I can see this decree does not conform to the forms given in the CPC and is certainly very defective inasmuch as the form prescribed under Order XXXIV Rule 5, Code of Civil Procedure, has not been followed. In form 6, meant for decrees under Order XXXIV Rule 5, it is provided:

It is hereby ordered and decreed that the mortgaged property...or a sufficient part there of be sold and that for the purposes of such sale the Plaintiff shall produce before the Court...all documents in his possession or power relating to the mortgaged property.

In the second clause of this form the judgment-debtor is entitled to the balance after the decree is paid off. It is this defect in the drawing up of the decree which had led to the defects which have arisen in the case.

On the 31st of August, 1948, the decree-holder applied for execution and to it he attached a copy of the decree of this Court. Nobody seems to have looked at the copy and on the 16th of May, 1949, a proclamation for sale under Order XXI Rule 66 was drawn up. Before the sale took place, i.e., on the 26th(sic) of May, 1949, the judgment-debtor filed objections saying ''inter alia'' that there was no properly drawn up decree ordering the sale but in spite of it the sale took place on the 13th of June, 1949, and on the 20th of August, 1949, the objections of the judgment-debtor were overruled because, according to the executing Court, the judgment of this Court had said that the Plaintiff was entitled to recover Rs. 14,200/- by sale of the mortgaged property.

An appeal has been brought against this order and the real point to be determined is whether the decree as drawn up by this Court is a sufficient direction to the executing Court to sell the mortgaged property for purposes of payment of the amount decreed to the decree-holder. It is obvious that for this purpose the decree, us drawn up by this Court, is defective, but it is submitted by Mr. Dwarka Nath Aggarwal firstly that there is substantial compliance with the Code and secondly that no objection as to the executability of the decree was raised until long after, at least after the proclamation of sale was drawn up, and, therefore, the judgment-debtor should not have been allowed to raise that point at such a late stage. In Support of his submission Counsel relies on ''Chha-ganlal v. Jayaram'' 51 Bom. 125. There a preliminary decree for sale was passed on the 18th of September, 1911. In December 1913 the decree-holder applied for the decree being made absolute. The decree-holder applied for execution of the decree in 1915, 1918 and 1920, but he did not proceed with any one of the applications and finally in April, 1921, another application was made for the recovery of money by sale of the mortgaged property and then an objection was raised that the decree was only a preliminary decree which had not been made final and was therefore not executable. It was held there that the preliminary decree along with the order making the decree absolute and the omission the draw up a formal final decree could be condoned u/s 99 of the CPC Shah, J., said at p. 130:

I am of the opinion that, though the final decree has not been formally drawn up, on the terms of the preliminary decree, which has been made absolute, that decree coupled with the order, may be taken under the circumstances to be a final decree. In its ultimate analysis, it is only a formal defect. * * * Section 99 of the CPC would cover such an error or irregularity, as under circumstances such as we have in this case, it does not affect the merits of the case or the jurisdiction of the Court.

Fawcett, J., agreed that the appeal be dismissed with costs but does not seem to have expressed any opinion on the question that was raised.

The learned Counsel then relied on a judgment of Manohar Lall J., in Bashisht Narain Singh Vs. Ram Pukar Singh and Others, The principle of the Bombay case that I have mentioned above was followed by the learned Judge. In the Patna case the decree executed was the preliminary decree and the sale took place on the 7th of January, 1939, but in the meanwhile a final decree was made on the 14th of January, 1938, and another proclamation of sale was then issued on the 4th pf December, 1938, and after the sale the judgment-debtor challenged the sale. It was held that even if it was assumed that there was an irregularity the judgment-debtor had not raised any objection to the sale and no error had been pointed out and it was merely an irregularity. But the facts of that case, as I have shown above, were very different. There a final decree did exist and proclamation for sale was drawn up in accordance with that decree. The sale took place after the final decree. It is true that the initiation of the execution was before the final decree was drawn up, but the sale took place after and in pursuance of the final decree and I do not think that this case would be of much assistance hi deciding the present one. The Bombay case, which was followed and which I have given above, does not seem to be of much assistance either because Shah, J., seems to have gone on the point that the preliminary decree, plus an order for final decree, was sufficient to give the executing Court the authority to proceed with the sale and that such a defect would be covered by Section 99 of the Code of Civil Procedure. With very great respect, I am unable to agree with this argument. An executing Court has to carry out the orders of the Court which, passed decree and if there is no order for effecting] sales or recovering moneys by selling the mortgaged property it is not open to the executing Court to do so merely because a judgment exists. The duty of an executing Court is to execute the decree and not the judgment which precedes the decree. Decree is the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may either be preliminary or final. Without an. express order from the Court for sale, it is in my opinion not open to the executing Court to sell the property in a mortgage decree. Indeed, it would be a very dangerous thing if executing Courts were to do something which had not been expressly ordered by Courts trying suits.

Another case relied upon by Mr. Dwarka Nath Aggarwal is ''Benu Mal v. Paras Ram'' 92 I C 254 (Lah). It was there held that.

though a relief may not have been granted by a decree, yet if in execution proceedings a Court holds that a party is entitled to such relief under the decree, it is not open to the parties afterwards to contend that no such relief has been awarded....

The case before me is quite a different one. Before the sale was held an objection had been raised that there was no executable decree and it was incumbent on the executing Court at that stage to first decide the objection which has been raised, but the learned Judge did not do so till after the sale.

What I have said above would also decide the second point, that once the executing Court has carried out the sale no objection should be allowed to be taken. That might be if the sale had taken place and an objection taken later. But in the present case an objection had been raised before the sale had taken place, besides I do not think that this objection should be allowed to be taken when there is no mention of it in the judgment of the learned executing Court which shows that this objection was not raised there.

I am therefore of the opinion that the learned Judge was in error in executing the decree when objection had been raised as to its executability. I would therefore allow the appeal and set aside the order of the executing Court ordering sale, but in view of the circumstances of this case I would order the parties to bear their own costs throughout.