Rampal Singh vs Pandit Udit Narain Pande and Others

Dhavle, J.—This appeal is directed against the dismissal of an objection u/s 47, Civil P.C, by one of the judgment-debtors, who was and is a minor. Two grounds were taken before the lower Court, and when the matter'' first came before us, we found that the lower Court had not expressed its view on one of them, namely, whether the notice under Order 21, Rule 22, Civil P. C, had been served. We accordingly remanded the case to the lower Court for a finding on this point, and the finding now received is against the appellant but is not challenged by him.

Dealing with the other point raised on behalf of the appellant, the question was whether the execution sale of 6th December 1938, which was assailed u/s 47 could be allowed to stand though held on a date which had not been fixed for it. About the facts there is no dispute. The suit had resulted in a final mortgage decree passed on the 16th September 1936, and in execution the mortgaged properties were advertised for sale on 14th November 1938. The major judgment-debtors, however, had already on 27th October 1938, made an application for fixing instalments u/s 15, Bihar Money-Lenders Act, then in force. This application was first adjourned to 5th November and again to the 19th of that month, an order being also passed on the 14th that the advertised sale was to be "kept on hammer" till the 19th as the applicants had asked that the sale be stayed pending the disposal of the instalment matter. On 19th November, the case was adjourned to 21st "the sale being kept on hammer" again. The application for instalments was disposed of on 2lst, when instalments of Rs. 2000 a year were fixed, the first instalment to be paid on 5th December 1938, and the subsequent instalments being payable on that date every year afterwards till satisfaction of the decree. "Failing payment of one of the instalments," the lower Court further said, "the decree-holder will be entitled to execute the decree as a whole ignoring the other instalments." The Court then proceeded to notice that in their application of the 14th the applicants ihad not "properly waived their objection regarding issue of fresh sale proclamation," and accordingly directed them to file a "separate petition" by the following day, failing which the sale was to proceed. The application of the 14th had merely asked for a stay of the sale for two weeks so that the application for instalments which had been fixed for the 19th might first be disposed of; and the learned Subordinate Judge seems to have assumed that the prayer for a stay was intended to be fortified by the usual waiver of technical objections. The event showed that the assumption was not unjustified, and in any case he clearly postponed the sale on the 14th on the definite footing that "all irregularities had been waived." His order of the 21st fixing instalments was apparently intended to become operative only if a "separate petition" of waiver was filed by the next day. On 22nd November an application was filed on behalf of the judgment-debtors waiving objections regarding the issue of a fresh sale proclamation, etc. This was taken up in the presence of the parties on the following day, when it was pointed out on behalf of the decree-holders that there was no vakalatnama authorizing the pleader to file the petition of waiver on behalf of all the judgment-debtors named in it. The case was, therefore, adjourned to 28th November to enable the pleader to file such a vakalatnama.

On the 28th the vakalatnama "as required above" was filed, and the Court ordered it to be kept on the record, without saying anything about whether the decree under execution has not by then been in effect replaced by a decree for instalments. The lower Court says that on this date the sale was adjourned to 5th December, but this is not supported by the record that has been placed before us. The first instalment, it will be remembered, was. payable on 5th December, and on this date the judgment-debtors put in a petition asking for two months'' time. The learned Subordinate Judge rejected this prayer and ordered that the case be put up on the following day "for sale at the usual time." It was thus that the properties were sold on 6th December and purchased by the mortgagee decree-holders. The application of the appellant assailing this sale was filed on 3rd January 1939, that is to say, within 30 days of the sale. The question is whether the lower Court had any authority to put the properties up to sale on 6th December because the judgment-debtors failed not only to pay the first instalment on 5th December but also to obtain an extension of time for the payment of this instalment. The order of 2lst November, from which I have already quoted, certainly entitled the decree-holders to take out execution on the failure of the judgment-debtors to pay any of the instalments. But could this mean that in the event of default in paying the first instalment, the decree-holders and the Court were to continue the execution proceedings which had been commenced before the fixing of the instal-ments and which were based on the original mortgage decree? It has been suggested by Sir Manmatha Nath Mukherji, who appears for the decree-holders, that the Subordinate Judge should be taken to have kept the execution case pending till the payment of the instalments by the judgment-debtors or till satisfaction of the decree in some other way. But the difficulty in accepting this contention is that the sale advertised for 14th November was for the realisation of the entire decretal amount, while the order for instalments, from the time it became operative, would only entitle the decree-holders to bring the properties to sale for whatever amount might be outstanding on the occurrence of a default by the judgment-debtors.

The order of 28th November, such as it was, meant compliance by the decree-holders with the only condition which seems from the order of 21st to have been required of them to bring the order of instalments into operation. The execution case could not remain pending after this in the sense of entitling the decree-holders or the Court to proceed with the sale without a fresh sale proclamation. The fact that there was a default on the part of the judgment-debtors in paying the very, first instalment, so that the amount due from them was the same as before, cannot entitle the decree-holders to claim that after the instalment order came into force, the execution that was proceeding under the original decree still remained effective so as to make a sale possible without a fresh sale proclamation and other necessary formalities. For if it could remain effective in that sense in respect of the first instalment, it must remain so in respect of the second or later instalments; and yet it is perfectly clear that it could not he so regarded in respect of such instalments because the amount for which the execution was to be levied at the time would be necessarily different from the amount for which execution had been proceeding under the original decree. Could it possibly be said, for instance, that after three instalments had been paid by the judgment-debtors it would be open to the lower Court, if the judgment-debtors failed to pay the fourth instalment, to sell the properties at a day''s or a moment''s notice for the balance still remaining due from them, and to do so because the execution case was pending from before the order for instalments ? In my opinion, this question must be clearly answered in the negative. Once the order for the instalments came into force, the right of the decree-holders to execute would arise on the occurrence of each default, and on such default it would be necessary for the decree-holders to apply to the Court for execution for the amount outstanding at the time so as to give the Court jurisdiction to proceed in the matter. In my opinion the lower Court had, therefore, no jurisdiction to sell the property on 6th December, as it did under its order of 5th December, without any application made by the decree-holders on the basis of the default of the judgment-debtors and without the usual sale pioclamation and other formalities of an execution sale. I would, therefore, allow the appeal and set aside the order of the lower Court with costs of both Courts.

Harries C.J.

I agree.