The Land Mortgage Bank of India vs Bishenmun Singh and others

A. Hobhouse, J. 1. The question raised in this appeal relates to the propriety of a sale effected on the 6th November 1880, under the order of the District Judge of Bhagulpore. The appellants are the judgment-debtors of the respondents, and the debt was secured by a mortgage. A suit was instituted by the respondents before the Subordinate Judge of Bhagulpore, for the purpose of realising that mortgage, and on the 8th January 1877 a decree was made, under which the property comprised in the mortgage was to be sold. Before the sale was effected certain objectors appeared, and then it turned out that the appellants had assumed to include in this mortgage certain property which, by a previous family arrangement, had passed to other members of the family. But, at the same time, and by the same arrangement, the appellants had received other properties which were not included in the mortgage. The respondents then instituted another suit, also in the Court of the Subordinate Judge of Bhagulpore, for the purpose of bringing within the influence of the mortgage the property which by the family arrangement had been substituted for the property that was professedly mortgaged, but did not belong to the mortgagors. That suit was called up by the District Judge into his Court, and in that suit a decree was made on the 6th August 1879 by the District Judge, which has now to be construed. 2. The decree was made by the consent of the debtors, and the effect of it was this: The Court declared that the substituted properties were fit to be sold by auction in execution of the decree of the creditors (that is, the decree of the 8th January 1877), and that for the purpose of that auction sale this suit ought to be taken as supplemental to the former suit. Then it directed that the mortgage given by the debtors to the creditors, and the aforesaid decree of the 8th January 1877, should be amended according to the previous declaration. Another term of the consent decree was that the debtors should have six months'' time, from the date of decree in the new suit, for making arrangements for payment of the amount due. 3. Those were the main terms agreed upon, and embodied in the decree. The six months elapsed, and some time after they had elapsed the creditors, the respondents, presented a petition for execution of the decree in the second suit. It has been disputed whether it was a petition for the execution of the decrees in both suits. Part of the petition looks one way and part the other, but it may be taken to be, as the appellants contend, that it was a petition for the execution of the decrees in both suits. Now it is a very odd thing that there is not in this record any copy of the order made upon that petition. All their Lordships find is that an order was made fixing the sale for the 5th November 1880, and that an application was made by the appellants for a postponement of that sale. The application seems to have been made on the very day for which the sale was fixed. The Judge refused that application. The sale took place. The appellants say they are aggrieved by that sale, and they seek by this appeal in some way to disturb the sale. It is difficult to say what they seek, because they now rest their case upon the allegation that the execution proceedings should have been carried into effect by the Subordinate Judge, and that the District Judge had no such power. If so, the order by which the appellants are aggrieved is the order which was made in answer to the petition for execution, and which ordered the sale; and that order is not appealed from. The order that is appealed from is the order made by the District Judge refusing the application to postpone the sale, which was a totally different question. It would be exceedingly difficult for the appellants to succeed, even if there were no jurisdiction, because they have never taken the proper course to complain on the ground of want of jurisdiction. They complain only of that which is discretionary in the Judge, of ordering the sale to take place at the time fixed or to postpone it. That is the ground of appeal to the High Court, and the ground of their appeal here. 4. But their Lordships do not desire to rest their decision upon that point. They think on the point which has been argued at the bar here, though it is not properly raised by the petition of appeal, that the appellants have shown no case for disturbing the order made by the District Judge. It is quite clear that in applying to the District Court for execution of the decree in the new suit the parties must have considered that the decree was one of the District Judge, and to be carried out by the District Judge; and though unfortunately we have not got the order made on the petition for execution, the District Judge himself must have so considered, because he made the order for the sale, and the sole question is whether the decree of the 6th August 1879 was the decree of the District Judge. 5. Now, like other decrees of Indian Courts, this is not drawn in the most artistic form; and it might be open to argument whether in saying the decree of the Subordinate Judge should be amended that decree still remained the decree of the Subordinate Judge; but their Lordships think that, even construing the language of the decree strictly, the better construction is that it was intended the decree should be that of the District Judge, and they think that in point of procedure it was more proper to make it the decree of the District Judge than the decree of the Subordinate Judge. If then it was desired that the Subordinate Judge should execute the decree, there should have been an order made by the District Judge ordering the subordinate Court to carry the decree into execution. The District Judge did not take that view. He carried his own decree into execution, and their Lordships consider that the decree which he carried into execution drew up into itself the decree of the Court below, and that it was in effect a decree for a sale of the whole of the property which the new suit approved to be the property affected by the mortgage. It may be observed in construing that decree that there is certainly one term in it which applies to the whole property; that which was originally well mortgaged, and that which was substituted into the mortgage, namely, that six months'' time should be allowed to the appellants to make arrangements. Their Lordships think that on the broad construction of this decree the sensible view of it is to hold that it was the decree of the District Judge, that it affected the whole property mortgaged, and that his jurisdiction to order execution was clear. 6. The result is that the appeal ought to be dismissed, and their Lordships will therefore humbly advise Her Majesty to that effect. 7. The appellants must pay the costs of the appeal; but their Lordships observe that in this record, as in many others that come before them, there is matter introduced which could not possibly have any bearing upon the question raised by the appeal. There is a map of the district of Bhagulpore, which is nothing but a copy of a public map. It is not an estate map, and even if it were, it would be difficult to see how it could bear on the question involved in this appeal. There are also nearly 30 pages of jummabundi accounts, and it is impossible to understand how those could have had any bearing upon the appeal. Therefore, in the taxation of the costs, their Lordships desire that the Registrar shall disallow all such as have been occasioned by the introduction of irrelevant matter.