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Mool Chand and ors. Vs. Lalta Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All524
AppellantMool Chand and ors.
RespondentLalta Prasad
Excerpt:
- iqbal ahmad, j.1. this is a judgment-debtor's appeal arising out of an execution case. the decree-holder respondent obtained a simple money decree against the appellant on 22nd november 1926. the decretal amount was payable in six equal instalments, the last instalment falling due on 22nd december 1929. the decree provided that in the event of default of payment of an instalment, the decree, holder would be entitled to realize the entire decretal amount. it was also provided by the decree that the judgment-debtor will execute a security bond before 22nd january 1927, failing which the judgment-debtor shall not be entitled to pay the decretal amount in instalments but will be liable to pay at once the entire decretal amount.2. the judgment-debtor did execute a security bond on 19th january.....
Judgment:

Iqbal Ahmad, J.

1. This is a judgment-debtor's appeal arising out of an execution case. The decree-holder respondent obtained a simple money decree against the appellant on 22nd November 1926. The decretal amount was payable in six equal instalments, the last instalment falling due on 22nd December 1929. The decree provided that in the event of default of payment of an instalment, the decree, holder would be entitled to realize the entire decretal amount. It was also provided by the decree that the judgment-debtor will execute a security bond before 22nd January 1927, failing which the judgment-debtor shall not be entitled to pay the decretal amount in instalments but will be liable to pay at once the entire decretal amount.

2. The judgment-debtor did execute a security bond on 19th January 1927, hypothecating certain immoveable properties. Default having been made in the due payment of the instalments, the decree-holder took out execution of the decree with respect to the entire decretal amount. He prayed for the realization of the decretal amount by attachment and sale of the property mortgaged under the security bond. Objection was then raised by the judgment, debtor that the decree-holder was not entitled to sell the mortgaged property without first bringing a suit on the basis of the security bond and in support of this contention reliance was placed on the provisions of Order 34, Rule 14 Civil P.C.

3. The Court below overruled the objection of the judgment, debtor. It is argued by the learned Counsel for the appellant that as the judgment-debtor had executed a security bond hypothecating immoveable property for the payment of the decretal amount, the decree-holder can only realize the amount by first bringing a suifc for sale on the basis of the security bond. In our judgment there is no substance in this contention. The decree-holder is entitled to execute his decree in any manner provided by law, unless there is some statutory bar to his doing so. The only provision of law on which reliance is placed is Order 34, Rule 14, Civil P.C. It is provided by that rule that where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under a mortgage, he shall not be entitled to bring the mortgaged property to sale without first instituting a suit for sale in enforcement of the mortgage. The case before us is not governed by Rule 14 for the simple reason that the decree under execution has not been obtained by the decree-holder in satisfaction of a claim arising under any mortgage. In deed the security bond was executed about I a month after the passing of the simple money decree now under execution. It is therefore clear that the decree under execution is independent of any claim arising under the security bond. The decree-holder is therefore entitled to sell the property covered by the security bond in: execution of his decree without putting the security bond into suit.

4. We accordingly dismiss the appeal with costs.


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