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Seth Kishori Lal Vs. Th. Kalyan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1940All212
AppellantSeth Kishori Lal
RespondentTh. Kalyan Singh and ors.
Excerpt:
- - the decree-holder did not admit that gopi lal had made an application but apparently the court below has been satisfied on that point......of these two villages in favour of kalyan singh and others, decree-holders. kishori lal then sold mauza arnia to bhagirath and he left the entire mortgage money due to kalyan singh and others to be paid by bhagirath. bhagirath executed a simple mortgage of mauza arnia to gopi lal or gopi nath and the mortgage deed provided that gopi lal would pay the entire mortgage debt due to kalyan singh and others. the money was not paid to kalyan singh, etc. kalyan singh, etc. brought a suit on the mortgage and obtained a decree. this decree was against kishori lal and also against bhagirath and gopi lal as subsequent transferees. kalyan singh applied for execution of this decree by sale of mauza somna. the reason why the application was made for sale of mauza somna only is because of the form of.....
Judgment:

Bennet, J.

1. This is an execution first appeal by Seth Kishori Lal, judgment-debtor, against an order of an execution Court refusing to stay execution of a mortgage decree. The Court below has set out the following facts and it is on these facts that learned Counsel Mr. Mital for the appellant has based his argument. Kishori Lal was the owner of two villages Somna and Arnia and he executed a mortgage of these two villages in favour of Kalyan Singh and others, decree-holders. Kishori Lal then sold Mauza Arnia to Bhagirath and he left the entire mortgage money due to Kalyan Singh and others to be paid by Bhagirath. Bhagirath executed a simple mortgage of Mauza Arnia to Gopi Lal or Gopi Nath and the mortgage deed provided that Gopi Lal would pay the entire mortgage debt due to Kalyan Singh and others. The money was not paid to Kalyan Singh, etc. Kalyan Singh, etc. brought a suit on the mortgage and obtained a decree. This decree was against Kishori Lal and also against Bhagirath and Gopi Lal as subsequent transferees. Kalyan Singh applied for execution of this decree by sale of Mauza Somna. The reason why the application was made for sale of Mauza Somna only is because of the form of the decree. The decree sets out that the suit for recovery of Rs. 5000, principal and interest, was decreed and Kishori Lal was found to be an agriculturist and was given three years to pay the amount so far as Somna property was concerned by yearly instalments of Rs. 4000 with effect from the end of May 1936 until satisfaction, etc. Then follow the words: 'The plaintiffs can proceed against Arnia property after expiry of period of grace in spite of the instalments.' The decree therefore treated the two villages in a different manner. In regard to Somna there was a period of three years because Kishori Lal, owner of Somna, was an agriculturist, and there was no such period of instalments given for Arnia because Bhagirath was not an agriculturist. For this reason therefore the application for execution in regard to Somna has been made. The judgment-debtor Kishori Lal filed an objection in which he set out that it had transpired that Bhagirath Das deposited with Gopi Lal the money for payment to the decree-holders, that Gopi Lal was thus responsible for payment of the entire amount of the decretal amount and that Gopi Lal had made an application under the Encumbered Estates Act and had obtained an order under that Act. Therefore Kishori Lal asked that there should be a stay of the execution of Mauza Somna. The decree-holder did not admit that Gopi Lal had made an application but apparently the Court below has been satisfied on that point. The decree holder pointed out that village Somna was exclusively owned by Kishori Lal and that the Encumbered Estates Court had no proceeding before it concerning Mauza Somna. On these facts, the Court below considered that no stay of execution should be granted. Learned counsel for the appellant has argued that there was a joint debt and that Gopi Lal and Kishori Lal and Bhagirath were all joint debtors and therefore the case is one which should be dealt with by the Special Judge under Section 9(5)(a) and (b), Encumbered Estates Act, and therefore there should be a stay order under Section 7. It is for this Court to determine in appeal whether the provisions of Section 7 will apply in the present case. That Section sets out in Sub-section (1)(a):

All proceedings pending at the date of the said order in any Civil or Revenue Court in the United Provinces in respect of any public or private debt to which the landlord is subject, or with which his immovable property is encumbered...shall be stayed.

2. The question therefore is as to whether the present case comes within these words. Now the present proceedings are only in regard to mauza Somna. From the form of the decree it appears that the two villages have been treated by the decree as entirely separate entitles and it cannot be said that a person who has an interest in Arnia has any interest in Somna. Nor can it be said that Gopi Lal has any interest in Somna. There was a mortgage executed of Mauza Arnia by Bhagirath in favour of Gopi Lal. There was no mortgage executed in his favour of Mauza Somna. He has therefore no proprietary or other interest in Mauza Somna and it cannot be said that mauza Somna is any portion of his immovable property which is encumbered. Now so far as the decretal amount is a debt, it cannot be said that this is a debt which Gopi Lal is bound to pay so far as mauza Somna is concerned. Mauza Somna has been treated under the Agriculturists' Belief Act on the ground that its proprietor Kishori Lal is an agriculturist. The treatment of that village Somna has been entirely separate. Therefore a decree and execution proceedings for the sale of mauza Somna do not appear to be in any way concerned with a debt which would be due for payment by the sale of mauza Arnia. It does not appear therefore that Section 7(1)(a) will cover the present case. Learned counsel also referred to the provisions of Section 9(5)(a) and (b). But these provisions involve the case of several joint debtors. It does not appear that the circumstances of the present case would constitute Gopi Lal and Kishori Lal as joint debtors. The undertaking which Gopi Lal gave (if he agreed to the mortgage deed) was an undertaking to pay the mortgage debt in full. In the case of such an undertaking it does not appear that the Special Judge could exercise functions of determining the amount which each of the joint debtors was to pay. Where there was an undertaking to pay the whole amount of the mortgage debt it is not clear how that undertaking is to be divided between the person who gave the undertaking and the person who received the undertaking. Section 9(5)(a) appears to contemplate quite a different case-that of several persons who are jointly liable to pay a certain sum of money. Learned counsel argued that because the decree was against all these persons as judgment-debtors therefore they were joint judgment-debtors and therefore they were joint debtors. But, as already pointed out, the form of the decree is quite different and the decree has differentiated the liability of the two villages Somna and Arnia. It is not a case of a decree which treats the judgment-debtors in the same manner. Learned counsel relied on Babu Ram v. Manohar Lal : AIR1938All6 . That was a case in which there was a compromise by which the defendants apparently agreed to pay a sum of money and in accordance with that compromise a joint decree was passed against the defendants. That is, the defendants were jointly liable to pay the simple money decree. Under these circumstances it was decided in the ruling that where one of the joint judgment-debtors had applied under the Encumbered Estates Act the Special Judge had to determine the amounts required to be determined by Section 9(5)(a) and therefore there must be a stay of execution of the decree until such determination. We do not think that the principle of this ruling will apply to the present case. For these reasons I consider that the decision of the Court below is correct and that this is not a case which should be stayed under Section 7 Encumbered Estates Act, and I would therefore dismiss this appeal.

Verma, J.

3. I agree that the appeal should be dismissed. It is conceded by the learned Counsel appearing for the appellant that it is open to the mortgagee decree-holder to proceed against any one of the properties mortgaged to him for the realization of the whole amount due to him. As has been pointed out by my learned brother, the decree-holder has proceeded against village Somna alone of which Kishori Lal is the sole owner. In my opinion the fact that Gopi Lal, who is said to be a subsequent mortgagee of another item of property covered by the mortgage, has made an application under the U.P. Encumbered Estates Act cannot, in the circumstances of this case, entitle Kishori Lal to take advantage of Section 7 of the Act.


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