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Dirgpal Singh Vs. Gulzari Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All341; 175Ind.Cas.938
AppellantDirgpal Singh
RespondentGulzari Lal and anr.
Excerpt:
- - the argument of the learned counsel for the appellant is that although the rule may not be intended to apply to a case like the present, still the actual wording of the rule would cover the present case. rule 6 itself is an exceptional case of a simple money decree......property were sold; some balance remained. on 9th april 1932, the decree-holder obtained a simple money decree under order 34, rule 6. in execution of that simple money decree the decree-holder has now applied for the sale of mauza kaohhora as a part of the property of the judgment-debtor. the objection is taken that under order 34, rule 14, the property cannot be sold because it was part of the mortgaged property. order 34, rule 14, sub-rule (1) states:where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in order.....
Judgment:

Bennet, Ag. C.J.

1. This is an execution first appeal by a judgment-debtor. The facts are that on 13th September 1912 the appellant borrowed Rs. 5000 on a simple mortgage payable in five years from one Gulzari Lal, respondent 1. There were five items of property mortgaged, one of which was a zamindari share in Mauza Kaohhora. Gulzari Lal brought Suit No. 138 of 1918 under Order 34, Rule 4, Civil P.C. for the sale of property by enforcement of this mortgage but in the plaint he asked that the suit should be only against four of the items of property and he exempted the zamindari share in Mauza Kachhora. A final decree for sale was passed on 21st February 1922, and the four items of property were sold; some balance remained. On 9th April 1932, the decree-holder obtained a simple money decree under Order 34, Rule 6. In execution of that simple money decree the decree-holder has now applied for the sale of Mauza Kaohhora as a part of the property of the judgment-debtor. The objection is taken that under Order 34, Rule 14, the property cannot be sold because it was part of the mortgaged property. Order 34, Rule 14, Sub-rule (1) states:

Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order 2, Rule 2.

2. By a reference to Order 2, Rule 2, we consider that the sub-rule refers to a simple money suit because it is only in such a case that there could be any question of bringing another suit for sale in enforcement of a mortgage. We do not consider that the sub-rule can apply to a simple money decree under Order 34, Rule 6 because in such a case the suit has already been brought for sale on the mortgage and no question of instituting a suit for sale on the mortgage could arise. The argument of the learned Counsel for the appellant is that although the Rule may not be intended to apply to a case like the present, still the actual wording of the Rule would cover the present case. The present case is an exception to cases under Rule 6, because in the present case the suit was not against all the mortgaged property but only against some of it. Such a case is a very rare exception. Rule 6 itself is an exceptional case of a simple money decree. It is most unlikely that the Rule could have been intended to provide for the case of an exception to an exception. It is not a correct method of interpretation to apply a Rule to a case to which it could not have been intended to apply as shown by the wording of the Rule itself. Order 2, Rule 2(2) provides:

Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

3. It is clear therefore that as the plaintiff relinquished his claim in the mortgage suit so far as the share in Mauza Kachhora is concerned, the plaintiff cannot now bring any mortgage suit against that share and his right to enforce the mortgage against that share has terminated. Learned Counsel referred to a number of cases, one of which is Khan Chand v. Ghasita : AIR1931All350 . That ruling was in a somewhat different case where there was a usufructuary mortgage and the plaintiff while in possession sued for a simple money decree. The simple money decree contained certain words : 'The plaintiffs will have no title or Concern left with the mortgaged property after the passing of this decree'. This Court held in the ruling:

All these words in the decree were entered so as to make it certain that the mortgagees may not continue in possession of the property in spite of the money decree. In reality those directions brought an end to the possession of the mortgagees but not to their title to recover money under the mortgage.

4. The Court therefore held that Order 34, Rule 14 was a bar in that case because the right to sue on the mortgage still subsisted. The Court stated on page 161:

We think that the test applicable to these cases would consist of an inquiry whether the mortgage security did or did not exist at the time the simple money decree was obtained. If it did exist, the provisions of Order 34, Rule 14, Civil P.C. must be given effect to. If it did not, then it will be found possible in certain cases to sell the mortgaged property in execution of the money decree.

5. The present case is one where the mortgage security no longer subsists as under Order 2, Rule 2, the relinquishment prevents the plaintiff from suing on that security against the share in question. Therefore under this ruling, Order 34, Rule 14 would not be a bar to the sale of this property. The same view has been held in Sheo Prasad Singh v. Muffassil Bank Ltd. Gorakhpur : AIR1929All580 it was stated:

Order 34, Rule 14 presupposes that a valid mortgage capable of enforcement subsists and that, if the mortgaged property is sold in execution of the simple money decree, the encumbrance created by the mortgage will continue to subsist.

6. Learned Counsel for the appellant admits that he cannot produce any ruling where the bar under Order 34, Rule 14 was ever applied to a simple money decree under Rule 6. In Kishen Lal v. Umrao Singh (1908) 30 All 146 it was laid down, following an earlier ruling, that where the mortgage still subsists, Order 34, Rule 14 bars the sale. The earlier ruling is in Madho Prasad Singh v. Baij Nath (1905) A.W.N. 152. That was a case where the mortgagee elected to proceed on his personal remedy and to ask for a money decree only against the mortgagor which he obtained and it was held that he was barred from bringing the mortgaged property to sale without bringing a mortgage suit as the right to do so still subsisted. We consider that the order of the lower Court is correct, and accordingly we dismiss this execution first appeal with costs.


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