1. This is an appeal by Bhudeo Prasad, plaintiff. The facts may be stated in some detail. The suit by the plaintiff was for the recovery of a sum of money on the basis of a mortgage executed by one Babu Lal. The defendants to the suit were the brothers of Babu Lal and one Sri Nath who was a subsequent transferee of 2/3rds of the mortgaged property. The main contesting defendant was Sri Nath and I am concerned with his defence only. His defence was that by reason of an order passed by an executing Court on 28th January 1931 the mortgagee was not entitled to proceed against 2/3rds of the mortgaged property in possession of Sri Nath. It appears that 1/3rd of the mortgaged property was put up to sale in execution of a simple money decree and the property was attached by the amin on 13th April 1930. On 23rd April 1930 Bhudeo Prasad filed a certain petition in connexion with which an order was passed by the executing Court on 28th January 1931, and it is said that this was an order passed by the executing Court under Order 21, Rule 62, Civil P.C., and as no suit was filed under Order 21, Rule 63, Civil P.C., the order was conclusive. Some time afterwards, the exact date is not known, Sri Nath purchased another 1/3rd portion of the mortgaged property, and his contention is that the order of the executing Court dated 28th January 1931 affects not only 1/3rd portion of the mortgaged property purchased by him at auction but affects the subsequent 1/3rd portion of the mortgaged property purchased by Sri Nath by private treaty. The trial Court held in favour of Sri Nath's defence so far as 1/3rd portion of the property purchased at auction was concerned but repelled his defence so far as 1/3rd of the property purchased by private treaty was concerned. The lower Appellate Court has upheld the defence of Sri Nath both as regards 1/3rd portion purchased at public auction and 1/3rd portion purchased by private sale, and hence there is this appeal by the plaintiff Bhudeo Prasad be. fore me, and it is contended that the Courts below are wrong and neither the 1/3rd purchased at auction nor the 1/3rd purchased at private sale by Sri Nath can be saved from the operation of the mortgage. I have already hinted briefly in an earlier portion of my judgment all the circumstances under which the plaintiff filed an application on 23rd April 1930 and the Court passed an order on 28th January 1931. When the 1/3rd portion of the mortgaged property was attached in execution of the simple money decree Bhudeo Prasad filed an application on 23rd April 1930 which might be quoted in extenso. The application is to the following effect:
In the abovenamed suit the decree-holder has attached and put up for Bale property mentioned below but that property is mortgaged with the petitioner by means of a mortgage without possession dated 16th June 1923 executed by Babu Lal for Rs. 2000 with interest at the rate of Re. 1-8-0 per cent, per mensem. Therefore it is prayed that at the time of auction notification of the mortgage might be made.
2. The lower Appellate Court mentions the various steps that were taken by the executing Court in connexion with the proclamation for sale. Separate notices were issued under Order 21, Rule 66, Civil P.C., to the judgment-debtor and to the decree, holder and separate notices were issued in connexion with this application made by the mortgagee Bhudeo Prasad. Some evidence was taken presumably because it was pleaded by the judgment-debtor that the mortgage had been paid up. The evidence, is far as I can gather, was on behalf of the mortgagor alone and not on behalf of the mortgagee and the executing Court passed iihe following order on 28th January 1931:
The objector alleges that the property sought to be sold is subject to his mortgage. The house was purchased by Babu Lal, brother of judgment-debtor, for Rs. 1400 on 29th August 1921. He borrowed Rs. 2000 on the security of this house by mortgage) deed dated 16th June 1923. He borrowed this money for the purpose of thekah business as it is clear from the mortgage deed itself. Babu Lal started theka business. He took Shiam Lal as his partner. Thn partnership rokar book has entry of payment of Rs. 1000 on 29th August 1923 and of Rs. 950 on 9th January 1929. The entries were made by the Munib at the instance of Babu Lal, The money being borrowed for thekah business, out of the thekah income the debt was discharged. Babu Lal is dead. I see no reason to doubt the genuineness of the entries. Rs. 950 being paid within 7 months of the execution of the mortgage deed, the remaining Rs. 50 and interest must have (been) paid. The deed appears to be discharged and so I dismiss the application.
3. It is said that this was an order passed under Order 21, Rule 62, Civil P.C., and therefore Bhudeo Prasad, against whom the order was made, should have instituted a suit to. establish the right which he claimed to the property in dispute, but as he did not file any such suit within a year of the order, the order was conclusive and it is not open to Bhudeo Prasad to say that the mortgage had not been discharged. As is clear, the order of the executing Court dated 28th January 1931 winds up by saying. 'The deed appears to be discharged and so I dismiss the application.' When this case was before me on a former occasion on 22nd December 19381 remitted an issue to the Court below. The issue was, 'Has the mortgage in suit been paid up,' and the finding returned by the Court below is that the evidence on the record falls short of proving that the mortgage in suit has been paid up. No objections have been taken to this finding by either of the parties and the finding of the lower Appellate Court must be accepted for what it is worth. The position therefore is that there is a finding of a competent Court obtained on the regular side to the effect that the mortgage deed in suit has not been paid up, and there is the contradictory finding of an execution Court in a summary proceeding that the mortgage in suit has been discharged, and I have in this second appeal either to reconcile these two findings, if such a thing is possible, or to give effect to that finding which predominates as a matter of law. It is contended by the plaintiff-appellant that the earlier finding of the learned Munsif sitting as an execution Court on 28th January 1931 is of no avail inasmuch as that finding was arrived at in connexion with the drawing up of the sale proclamation, whereas on behalf of the defendant-respondent Sri Nath it is said that the finding was given under Order 21, Rule 62, Civil P.C. The real question for determination in a matter like this is whether the petition of 23rd April 1930 by Bhudeo Prasad was a petition of objection or claim under Order 21, Rule 58, Civil P.C., or a petition for the purposes of notification under Order 21, Rule 66, Civil P.C., so that the Court might specify fairly and accurately the incumbrances to which the property sought to be sold was liable. Reliance was placed by learned Counsel for the parties on several authorities to which reference has been made in the judgment of the lower Appellate Court. I have considered every one of these cases save the Oudh cases, and I think that except the cases in Mohit Narain Jha v. Thakan Jha (1925) 12 A.I.R. Pat. 500, Debi Das v. Rup Chand : AIR1927All593 and Niwal Kishore v. Khiali Ram (1929) 16 A.I.R. lah. 865 the others have not a material bearing.
4. There can be no doubt that under Order 21, Rule 66, Civil P.C., the Court has got to draw a fair and accurate proclamation of sale and has got to specify the various particulars required to be so specified under that rule and in that connexion has got to issue notices to the decree-holder and to the judgment-debtor and has also, for the purposes of ascertaining the matters to be specified in the proclamation, the power to summon any person whom it thinks necessary to summon and to examine him in respect to the matters to be entered in the sale proclamation and can also require such a stranger to produce any document in his possession or power. The notices are not necessarily limited to the judgment-debtor and to the decree, holder. It is the duty of the Court to obtain from all available sources a list of the existing encumbrances, and the petition of 23rd April 1930 might well be regarded as one of such sources. At the same time there can be no doubt, as was hold in the Lahore case, that
if a person chooses to take advantage of a summary procedure, he must suffer its disadvantage as well as enjoy its benefit, and therefore if a mortgagee without possession chooses to prefer an objection under Order 21, Rule 58, on the strength of his alleged mortgage, and an adverse order is passed against him in the objection proceeding, such decision is conclusive against him unless he brings a declaratory suit within one year,
but as wa3 held there, the real question is what is the nature of the petition filed by the mortgagee. In the Lahore case the mortgagee had said that the property was not liable to attachment and sale in execution of the decree in question unless the mortgage money due to the objector was preserved. A somewhat similar decision was obtained in Debi Das v. Rup Chand : AIR1927All593 , but it is of some importance to note that the application by the mortgagee was not before the Court and their Lordships to a certain extent speculated about the nature of the application. I have not the slightest doubt that if a mortgagee files a petition of objection or claim then an order adverse to the mortgagee given by the Court will be conclusive unless the mortgagee brings a suit within a year, but did the mortgagee in the present case file any claim or petition; did he ever say that he had an objection to the attachment and sale of the property and did he ever any that the property should be sold subject to the mortgage or charge of the petitioner. To my mind all that he did was to give an information to the Court about an encumbrance and prayed that the same be notified. As far as I can see, he did not adduce any evidence and it was only the judgment-debtor who contended that the mortgage was paid up and in that connexion it was he who produced some evidence and the Court ultimately dismissed the petition of the mortgagee that is to say refused to notify the mortgage in the proclamation for sale.
5. I have therefore come to the conclusion that the order that was passed by the execution Court on 28th January 1931 wag not an order under Order 21, Rule 62, Civil P.C. and the mortgagee is not in any way debarred from contending in the present case that the mortgage has not been paid up That being so, there is the finding of the lower Appellate Court, a finding of fact which has not been objected to by the parties, that the mortgage has not been discharged. The plaintiff therefore is entitled to have his claim decreed. I might further add that if I had been against the mortgagee as to the interpretation of the application dated 23rd April 1930 and the order dated 28th January 1931, I would have held that the order operated only in respect to 1/3rd portion of the mortgaged property. Order 21, Rule 63, Civil P.C., speaks of claim to the property in dispute and says that to that extent the order shall be conclusive. There is no question of resjudicata in a matter like this and the lower Appellate Court, to my mind, is in error when it says that Sri Nath purchased the property at private sale after he had ob-tamed an order to the effect that the mortgage had been discharged. That order related only to 1/3rd portion of the property and that order could not be taken advantage of by Sri Nath in connexion with the purchase of the property at a private sale. As I said before, we do not know even the date of the private sale and it may well be that that private sale was held before the expiry of a year from after the order of 28th January 1931.1 however do not base my decision on any consideration as to the time when the property was purchased, but on the general ground that the order, if it had been of any avail, could be taken advantage of only in connexion with 1/3rd portion of the mortgaged property. For the reasons given above, I allow this appeal, set aside the decrees of the Courts below and decree the plaintiff's suit against all the defendants and against the entire property with costs in all Courts. The decree will be drawn up under Order 34, Rule 4 Civil P.C., giving six months time to the defendants to pay up the mortgage money. Leave to file an appeal by way of Letters Patent is allowed.