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Moti Chand and ors. Vs. Mahabir Prasad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1930All638
AppellantMoti Chand and ors.
RespondentMahabir Prasad
Excerpt:
- .....an objection in the execution court to the effect that the mortgagee had released a part of the mortgage property and there ought to be a proportionate reduction in the amount of the mortgage money. this objection was filed on 15th september 1927 and the prayer was in the following words:one-fourth share of house no. 40 aforesaid purchased by the objector petitioner may not be sold and rs. 100 or any other proportionate mortgage money may be ordered to be paid to the decree-holder.3. after hearing the parties the court first passed an order on 9th june 1928 stating that the mortgagee having released three-fourths of the share and also another property had split up the mortgage and therefore the objector was entitled to get the mortgage debt apportioned; it ordered:the parties should.....
Judgment:

Sulaiman, J.

1. This is a decree-holders' appeal arising out of certain execution proceedings. A preliminary objection is 'taken to the hearing of this appeal. It will be convenient to give the facts of this case before disposing of this objection. In 1913 a mortgage-deed was executed in favour of Raja Moti Chand by Dr. Bageshwari Narain and others for a large sum of money hypothecating several properties including a house described as house No. 40 in Chowk Allahabad. Three-fourths share in this house was subsequently purchased by Lala Madho Prasad. A suit was instituted on 17th August 1920 on the basis of this mortgage deed and was decreed in part by the first Court. Both parties appealed to the High Court where there was a compromise decree on 12th March 1926. Under this compromise it was agreed among other things that Mahabir Prasad would pay Rs. 13,500 to the plaintiffs and the plaintiffs would exempt the three-fourths share in this house which had been purchased by him. A decree was passed on the basis of this compromise for a consolidated amount of over Rs. 2,00,000 which was to be realised by sale of all the properties with the exception of the three-fourth share in this house. The preliminary decree was followed by a final decree which was prepared on 26th March 1927.

2. Another creditor of the mortgagors obtained a simple money decree in 1914 and in execution of that decree attached the one-fourth share in this house on 16th March 1925, while the appeal was still pending in the High Court. The attaching creditor was, however, not a party to that appeal. After the compromise decree he filed an objection in the execution Court to the effect that the mortgagee had released a part of the mortgage property and there ought to be a proportionate reduction in the amount of the mortgage money. This objection was filed on 15th September 1927 and the prayer was in the following words:

One-fourth share of house No. 40 aforesaid purchased by the objector petitioner may not be sold and Rs. 100 or any other proportionate mortgage money may be ordered to be paid to the decree-holder.

3. After hearing the parties the Court first passed an order on 9th June 1928 stating that the mortgagee having released three-fourths of the share and also another property had split up the mortgage and therefore the objector was entitled to get the mortgage debt apportioned; it ordered:

The parties should give the market value of the different portions of the mortgaged property in different hands within 15 days.

4. On 5th January 1929, the decree-holder applied stating that the order of 9th June 1928 was an interlocutory order deciding a principle against him from which he could not appeal and requested the Court to pass a final order. The Court, therefore, passed an order on 18th March 1929, which is the subject matter of an appeal. Under this order it fixed the amount which the decree-holder was entitled to recover and ordered that on payment of that amount within one month by Mahabir Prasad his one-fourth share should be released from sale, but in ease of default of payment that portion also will be sold. The costs were to be borne by both the parties.

5. On behalf of the respondent the first objection is that the decree-holder ought to have appealed from the order of 9th June 1928, and having allowed it to become final the decision that the mortgage debt has been split up was final between the parties and could not be re-opened. The argument is that the decision of that question of principle was a determination of a question within Section 47, Civil P.C., and therefore by virtue of the provisions in Section 2, Civil P.C., it amounted to a decree and ought to have been appealed from.

6. It seems to us that every order passed by an execution Court in the course of proceedings under Section 47 does not necessarily amount to a decree so as to be appealable. Section 47 must be read with the definition of 'decree' in Section 2. The mere determination of a question would not be sufficient but that determination must amount to the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to the matters in controversy. Unless an interpretation is put on the definition of 'decree' in Section 2, every conceivable order in the Execution Department would become automatically appealable. There are several cases of this Court which have accepted this principle. We may for instance refer to 'the case of Husain Bhai v. Beltie Shah Gilani A.I.R. 1924 All. 808 and Hira Lal v. Tikam Singh : AIR1926All401 .

7. The order of 9th June 1928 was in our opinion in the nature of an interlocutory order expressing the opinion of the Court that the mortgage debt had been split up and there ought to be a rateable reduction in the decretal amount. The objection of the judgment-debtor was not disposed of by the Court conclusively as it had still to determine the market value of the different portions of property and to fix the rateable liability of the one-fourth share of Mahabir Prasad. As to the objections filed by Mahabir Prasad the Court had expressed no complete opinion on the point involved and it did not finally dispose of his objection. There was therefore no conclusive determination of the matter in controversy and the Court in our opinion was still seised of the ease. No appeal therefore lay from that interlocutory order and the preliminary objection has no force.

8. On the merits it seems to us that the order of the Court below cannot be supported. The respondent is a purchaser at an auction held in execution of a simple money decree under which a part of the mortgage property had been attached during the pendency of the mortgage suit. It is quite clear that he cannot acquire any paramount right against the mortgagee decree-holder and is bound by the compromise decree which was ultimately passed in this suit and under that decree there was a joint liability for the payment of the entire decretal amount against the entire mortgaged property excluding the three-fourths share in the house. It is therefore not open to him to go behind that decree and urge in the Execution Department that the amount should be split up. The execution Court ought not to be allowed to go behind the decree to allow the decree-holder to realize the whole amount by sale of the property entered in the decree. Once a joint mortgage decree is passed against several items of property the mortgagee decree-holder is entitled to realize the entire amount from any part of those properties and ha can also sell them in any order that he wishes to choose. Neither the judgment-debtor nor any transferee pendente lite from him is entitled to have the decretal amount split up and the liability apportioned. We accordingly allow this appeal and setting aside the decree of the Court below dismiss the objections of the judgment-debtor with costs in both Courts including in this Court-fees on the higher scale.


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