The Official Assignee of the High Court of Judicature at Fort William in Bengal vs Mt. Jaga Bibi and Others

Sen, J.—The facts necessary for the decision of this appeal are as follows:

On the 26th of July, 1911, the judgment-debtor executed a mortgage bond in favour of the decree-holder respondent. The mortgagor having executed the document refused to register it. Hence the creditors applied for compulsory registration and the document was duly registered on the 8th of August, 1912. Before registration, however, on the 24th of November, 1911, the mortgagor was adjudicated an insolvent and a vesting order was made u/s 17 of the Presidency Insolvency Act vesting the property of the insolvent in the Official Assignee. A suit was then instituted by the mortgagee being Suit No. 214 of 1918 on foot of the mortgage. This suit was resisted by the Official Assignee on various grounds. First, it was contended that in view of the vesting order the mortgagee could not bring a suit, but must prove the debt in insolvency. The mortgagee on the other hand, relied on the proviso to Section 17 of the Presidency Insolvency Act. Secondly, the character of the mortgage was assailed and it was contended that the mortgage was not a bona fide transaction, nor for consideration. Thirdly, it was also contended that in any event the mortgagee should not be ranked as a secured creditor inasmuch as the mortgage in his favour, though executed before the vesting order, was registered after it, and was, therefore, inoperative at the time of the vesting order.

The learned Subordinate Judge of Patna went into all these matters and decided in favour of the mortgagee and passed a decree on the 29th of March, 1921. On the first and second points he held that the mortgage was executed bona fide by the mortgagor as karta of a joint family for family necessities and that the properties mortgaged were joint family properties. In view of the definition of "property" in Section 2 of the Presidency Insolvency Act, he further held that the joint family property of the mortgagor, who was karta, was not property over which the insolvent mortgagor could be said to have disposing power for his own benefit. He further held that in view of Section 47 of the Indian Registration Act, the mortgage must be deemed to have operated from the time from which it would have commenced to operate if no registration thereof had been required or made. On the above grounds the Court held that the plaintiffs were entitled to the usual mortgage-decree and a decree was made in the presence of all the defendants. In the Executing Court the same grounds were urged by the official Assignee but his objections were disallowed. Hence this appeal.

The difficulty in the way of the appellant is that none of these grounds can be urged at this stage. The Executing Court cannot get behind the decree. The learned Vakil for the appellant contends that this is one of those cases where the decree may be considered to be a nullity; and, therefore the Executing Court may go into the question as to whether there is a decree to execute. In my opinion this contention is not tenable. The Court decreeing the suit went into all these matters carefully and the decree cannot be challenged in execution proceedings. The learned Vakil has cited a number of cases in support of his contentions mentioned above which are identically the contentions urged by the Official Assignee before the learned Subordinate Judge at the trial of the suit. In view of the above conclusion that we have come to, I think it is unnecessary to deal with those cases.

The appeal is dismissed with costs.

Ross, J.

I agree.