Skip to content


Lala Ram Saran Das and anr. Vs. Lala Banwari Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All98; 173Ind.Cas.729
AppellantLala Ram Saran Das and anr.
RespondentLala Banwari Lal
Excerpt:
- - chandu lal air1928all71 as good law. assuming the preliminary objection to which we have already referred is not well founded, we have to consider whether we should interfere with the order passed by the lower court......in revision under section 115, civil p.c., and is directed against what purports to be a simple money decree passed in favour of a mortgagee who had obtained preliminary and final decrees for sale on foot of a mortgage which however proved to be infructuous as the result of a suit brought by one of the members of the joint hindu family of the mortgagors. the facts, so far as they are material for the purposes of the case before us, may be briefly stated: ram saran das and his son lachmi narain, who are the applicants before us, executed a deed of simple mortgage on 17th may 1926 in favour of the plaintiff opposite party. the latter instituted a suit for the enforcement of the mortgage and obtained a preliminary decree which was in due course followed by a final decree. before the.....
Judgment:

Niamatullah, J.

1. This is an application in revision under Section 115, Civil P.C., and is directed against what purports to be a simple money decree passed in favour of a mortgagee who had obtained preliminary and final decrees for sale on foot of a mortgage which however proved to be infructuous as the result of a suit brought by one of the members of the joint Hindu family of the mortgagors. The facts, so far as they are material for the purposes of the case before us, may be briefly stated: Ram Saran Das and his son Lachmi Narain, who are the applicants before us, executed a deed of simple mortgage on 17th May 1926 in favour of the plaintiff opposite party. The latter instituted a suit for the enforcement of the mortgage and obtained a preliminary decree which was in due course followed by a final decree. Before the decree could be executed, another son of Ram Saran Das, who had not joined in the execution of the mortgage deed instituted a suit impugning the validity of the mortgage deed and the decrees passed on foot thereof on the usual ground that the debt evidenced by the mortgage deed had not been contracted for a purpose which justified the alienation of joint family property. This suit, to which the mortgagee was a party, was successful. The mortgagee then applied under Order 34, Rule 6, Civil P.C., for a simple money decree. The applicants, the original mortgagors, objected on the ground that, as no sale of the mortgaged property had taken place, and as consequently no case of a sale proceeds proving insufficient had occurred, no simple money decree could be passed. The lower Court definitely upheld the contention that Order 34, Rule 6, Civil P.C., did not apply, but nevertheless passed a simple money decree in the exercise of its equitable jurisdiction. In doing so the learned Judge relied upon Bisheshar Nath v. Chandu Lal : AIR1928All71 in which, though the actual decision of the case turned on the question of limitation, the learned Judges held that the Court can pass a simple money decree wholly apart from Order 34, Rule 6, on equitable grounds. The correctness of this view has been seriously challenged before us in revision.

2. Learned Counsel for the opposite party has taken a preliminary objection that no revision lies. It is contended that the simple money decree, passed by the lower Court for a sum of Rs. 4179-6.0, should have been challenged in an appeal to the District Judge and that if this had been done a second appeal would have lain to this Court. Accordingly, it is said, no revision can lie under Section 115, Civil P.C. Learned Counsel for the applicants replies that the so called decree is not a decree, as defined in the Civil Procedure Code, the same not having been passed in the suit itself but long after the termination thereof. It is pointed out that, according to its definition, a 'decree' is the formal expression of adjudication with regard to any of the matters in controversy in the suit and that the suit having been finally decided by the passing of the final decree, the so-called decree passed by the lower Court, which is wholly apart from Order 34, Rule 6, cannot be considered to be embodying an adjudication with regard to any of the matters in controversy in the suit. As against this, it may be said that part of the ratio decidendi adopted by the learned Judges in Bisheshar Nath v. Chandu Lal : AIR1928All71 is that, on an application for a personal decree being made by a mortgagee, the suit is re-opened and that a simple money decree passed by the Court, whether under Order 34, Rule 6, Civil P.C., or otherwise, embodies an adjudication as regards a controversy in the suit. We do not consider it necessary to express a decisive opinion on this part of the case in view of what we are inclined to hold on the principal question involved in the case before us.

3. That a Court can pass a simple money decree, wholly apart from the provisions of Order 34, Rule 6, Civil P.C., is a view which found favour with the learned Judges who derided Bisheshar Nath v. Chandu Lal : AIR1928All71 . This Court has however repeatedly held that a simple money decree under Order 34, Rule 6, Civil P.C., can be passed when and if the sale has taken place and the sale proceeds have proved insufficient for the satisfaction of the mortgage money. Order 34, Rule 6 empowers a Court to pass a simple money decree in a suit which has been previously concluded by a final decree. There is no other rule of law under which such a simple money decree can be passed. With great respect, we point out that a Court cannot pass a decree on equitable grounds, which the law does not expressly empower it to pass. Where a specific provision has been made by law prescribing the conditions in which a decree can be passed, the Court can act only within the limits laid down by such law. It is not justified in enlarging its powers by an appeal to equitable considerations. This Court has held in several cases that a simple money decree cannot be passed, unless the contingency contemplated by Order 34, Rule 6, has occurred, for instance, Behari Lal v. Bisheshar Dayal (1912) 9 A.L.J. 569, observations in the Full Bench case in Radha Krishna v. Tej Saroop : AIR1930All69 : Darbari Mal v. Mula Singh (1920) 7 A.I.R. All. 155 and Babu Lal v. Raghunandan : AIR1932All475 . If a simple money decree can be passed wholly apart from Order 34, Rule 6, Civil P.C., its provisions are rendered absolutely nugatory. If we accept the correctness of the view taken in 50 All 3211 we feel that we will have to disregard the view taken in the cases noted above, in which the right of a mortgagee to obtain a simple money decree, without an attempt to sell the mortgaged property, was negatived. We think therefore that we are justified in not considering Bisheshar Nath v. Chandu Lal : AIR1928All71 as good law.

4. The next question is whether we should set aside the decree passed by the lower Court in the exercise of our revisional jurisdiction. Assuming the preliminary objection to which we have already referred is not well founded, we have to consider whether we should interfere with the order passed by the lower Court. The suit in which the mortgage and the decree passed on foot thereof were challenged was decided on 7th May 1934. The mortgagee lost no time in applying to the Court for a simple money decree on 9th May 1934. In that application he stated that the preliminary and the final decrees passed in the mortgage suit had been j annulled and that the suit had been reopened. He quoted in his application the case in Bisheshar Nath v. Chandu Lal : AIR1928All71 , and a ruling of the Lahore High Court to the same effect. The lower Court passed a decree relying upon those rulings. It was obviously not in a position to take the view of the law which we have taken. The lower Court passed the decree on 14th May 1935. The present application for revision was not made till 26th February 1936. Ordinarily this Court does not entertain applications for revision made after undue delay which is manifest in the present case. An affidavit has been filed before us that the applicant Bam Saran Das was in jail all the time; but the other applicant, Lachmi Narain, his son, who looked after the affairs of the family, could have acted with greater promptitude. The personal liability of the executants of the mortgage deed apparently subsists. In all the circumstances of the case, we do not think this is a fib case in which this Court should interfere in the exercise of its revisional jurisdiction. Accordingly we dismiss this application but make no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //