Sonu Lal and Others vs Ramnandan Singh

Rowland, J.—The appellants are sons and successors in interest of the holder of a mortgage dated 23rd October 1916, on which he brought a suit on 7th February 1930, and obtained a preliminary decree dated 14th July 1930, and final decree dated 18th January 1932. He put the property to sale on 9th February 1932, and got delivery of possession on 19th June in the same year. The principal respondent had taken two mortgages, one dated 3rd February 1914, and another dated 18th April 1915, secured on a number of properties including that in respect of which the appellants are interested. He brought his suit on 5th June 1922, impleading his mortgagors and the present appellants'' father in the capacity of a puisne mortgagee. The latter resisted the suit, and on 10th March 1927, the respondent abandoned his claim and suffered it to be dismissed so far as the appellants'' father was concerned, but obtained a compromise decree against the mortgagors for sale not of all the properties comprised in the mortgage, but of certain of these properties only others being exempted. Later he moved the Court to review the decision in so far as its effect was to dismiss the suit against the appellants, but the application was not granted. The respondent took his final decree on 10th January 1931, and requested the Court to expunge the name of the present appellants from the record. This was refused and the name of the appellants, therefore, remains as the name of a party against whom the suit has been dismissed.

In 1932 the respondent put his decree into execution. At that time he asked the Court to notify in the sale proclamation the appellants'' encumbrance, but at a later stage of the proceedings this was withdrawn, and he is now seeking to put the property up for sale without any reference to any right or claim of the appellants. The latter objected that the property which it was sought to be put up for Sale was their property and could not be sold in execution of the respondent''s decree. The respondent opposed this objection contending, first, that the appellants not being judgment debtors had no locus standi to contest the application; secondly, that the application was not maintainable as it was not an application relating to the execution, discharge or satisfaction of the decree but one going to the root of the decree itself; and, thirdly, claiming that the mortgage of the respondent and decree passed thereon had priority over the mortgage decree and auction-purchase of the appellants and that the property should be sold free from any encumbrance in favour of the appellants.

The Subordinate Judge has held, first, that the appellants are still parties to the suit notwithstanding that it has been dismissed as against Basant, and, therefore, the first objection of the decree-holder against the maintainability of the objection failed. The Subordinate Judge next held that the application of the objector was an objection to the whole decree and, therefore, did not come within Section 47, as a question relating to the execution, discharge and satisfaction of it.

On the first point the finding of the Subordinate Judge is well supported by authority. On the second point the proposition is clear that the objection must relate to the execution, discharge or satisfaction of a decree, and, therefore, the appellants'' contention that the decree, which is for sale of the mortgage property, cannot be given effect to at all is out of Court; but there still remains a question as to the manner of the execution of the decree, that is to say, whether it can be executed by selling the property unconditionally so as to conclude the rights of the appellants by a sale in this execution. To this extent the objection was cognizable by the executing Court. In considering the rights of the parties and to what extent they can be given effect to in this execution proceeding, it is to be noticed that the appellants are not only the holders of a mortgage and of a mortgage decree, but are actually purchasers who have taken delivery of possession of the property. They are, therefore, in a position analogous to that of mortgagees in possession and holders of an encumbrance which it seems to be the duty of the Court to notify in the sale proclamation. The claim of the respondent that his mortgage has priority over the rights of the appellants so as to enable him if he purchases the property to eject the appellants, and the appellants'' counter-claim that as between the respondent and themselves the respondent''s rights do not amount to a valid mortgage prior to that of the appellants, are matters which do not fall to be decided in this litigation at its present stage.

Substantially then the order of the Subordinate Judge is affirmed subject to the observation that the encumbrance of the appellants is a matter which ought to be mentioned in the sale proclamation. There will be no costs of this appeal.

James, J.

I agree.