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Abdul Shakur Vs. Mahabir Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1949All427
AppellantAbdul Shakur
RespondentMahabir Prasad and ors.
Excerpt:
- - 2,310, leaving a much larger amount unsatisfied. act, those case had ceased to be good law. curiously, there is no reference to the rulings cited by the decree-holder before the trial court and mentioned in its judgment as not good law after the removal of section 90 from the transfer of property act. in my judgment the appellant was perfectly entitled to apply under order 34, rule 6, and his application was wrongly dismissed by the courts below......the plaintiff to realise his decree only from the house mortgaged.3. some time later the decree-holder, having obtained a final decree, put the house to sale and was able to realise only rs. 2,310, leaving a much larger amount unsatisfied. the decree-holder then applied to the court that a decree under order 34, rule 6, civil p.c. may be passed in his favour for the recovery of this unrealised balance. objection was taken to this application by the judgment-debtors, with the result that the decree-holder's application was dismissed by both the courts below.4. the trial court dismissed the application on the ground that the decree-holder, having relinquished a portion of the security by making his declaration under section 4, debt redemption act, was not entitled to apply for a.....
Judgment:

Mushtaq Ahmad, J.

1. This is a decree-holder's appeal. The decree was passed on foot of a mortgage dated 28th March 1933, executed by Mahabir Prasad, respondent J, in favour of the appellant for Rs. 2500. The debt was charged on a house within the municipal limits of Banaras together with some agricultural land outside those limits.

2. On 24th October 1940, the appellant filed his suit on foot of the mortgage, but during the pendency of it, on 1st January 1941, the Debt Redemption. Act (XIII [13] of 1940) came into force. The appellant then gave a declaration under Section 4 of the Act that he would not proceed against the classes of property mentioned in that section. The suit was decreed for sale on 21st April 1941, permitting the plaintiff to realise his decree only from the house mortgaged.

3. Some time later the decree-holder, having obtained a final decree, put the house to sale and was able to realise only Rs. 2,310, leaving a much larger amount unsatisfied. The decree-holder then applied to the Court that a decree under Order 34, Rule 6, Civil P.C. may be passed in his favour for the recovery of this unrealised balance. Objection was taken to this application by the judgment-debtors, with the result that the decree-holder's application was dismissed by both the Courts below.

4. The trial Court dismissed the application on the ground that the decree-holder, having relinquished a portion of the security by making his declaration under Section 4, Debt Redemption Act, was not entitled to apply for a simple money decree under Order 34, Rule 6, Civil P.C. As regards the cases in Sheo Prasad v. Behari Lal 25 ALL. 79 and Ghafur Hasan Khan v. Mohammad Ktfayat Ullah Khan 2 A.L.J. 413 cited by the appellant's counsel before the learned Munsif, he held that after the repeal of Section 90, T. P. Act, those case had ceased to be good law. In this he evidently overlooked that this section had been transferred to the Code of Civil Procedure and was embodied in Order 84, Rule 6 of the Code.

5. The lower appellate Court, while affirming the order of the trial Court, wrote a Judgment which in parts appears to me to be rather abstruse. In effect the learned Judge held that the decree-holder had relinquished a portion of the mortgaged property, the necessary result of which was that he could not apply for a decree simple in 'respect of the unrealised balance of the decretal amount. Curiously, there is no reference to the rulings cited by the decree-holder before the trial Court and mentioned in its judgment as not good law after the removal of Section 90 from the Transfer of Property Act.

6. The main consideration which weighed with the learned Civil Judge was equitable consideration that the decree-holder, having by virtue of making a declaration under Section 4, Debt Redemption Act, entitled himself to a higher rate of interest, should not be allowed to claim a, decree under Order 34, Rule 6, Civil P.C., in respect of the unrealised portion of the decretal amount. This is a point which, I think, can be summarily disposed of If no declaration had been made by the decree-holder, he would, no doubt, have been entitled to a lower rate of interest, and in that case he would not have been entitled to apply for a simple money decree in view of the provisions of Section 21, Debt Redemption Act. On the other: hand, if, as a result of a declaration under the said section of the Act, he became entitled to the contractual rate of interest and, therefore, to a larger amount, he also made the entire provisions of the Act, including Section 21 of it, inapplicable to his case. This must necessarily mean that, Section 21 having become inapplicable, the bar entailed by that section was also removed, with the ultimate result that, so far as the Debt Redemption Act is concerned, there was nothing to prevent him from applying for a decree simple in case the whole of the decretal amount was not realised. This is the necessary result following from the decree-holder making a declaration cinder Section 4 of the Act. I see nothing in this which can be conceived as a disadvantage to the judgment-debtor or as a phenomenon flowing from any inequity working against him.

7. As regards the question whether, as a result of the decree-holder relinquishing a portion of the mortgaged property, he was debarred from recovering the remaining amount of his decree from any other property of the judgment-debtor, I have only to refer to the two cases already mentioned by me. In Sheo Prasad v. Behari Pal 25 ALL. 79 (ubi. supra) the decree for sale was only for a part of the mortgaged property. It was still held that the mortgagee decree-holder was entitled to recover the unrealised portion of his decree by obtaining a simple money decree under Order 34, Rule 6, Civil P.C. In the other case of Ghafur Hawaii Khan v. Mohammad Kifayat Ullah Khan 28 ALL. 19 (ubi supra the decree-holder had obtained an order for sale of part of the mortgaged property only, thereby relinquishing the rest, and yet this Court took the view already taken in the case first mentioned. In the Full Bench case of B. Mahadea Prasad Pal Singh v. B. Jai Karan Singht A.I.R. (20) 1933 Oudh l also it was held that where part only of the mortgaged property was directed to be sold under the decree passed on the mortgage, the decree-holder was entitled to proceed against any other property of the judgment-debtor to satisfy that portion of the decretal money which remained unrealised after the sale of the said property. Order 34, Rule 5, Sub-rule (3), definitely provides that the plaintiff, where payment in accordance with Sub-rule (1) has not been made, may apply for a final decree directing that the mortgaged property or a 'sufficient part thereof' be sold. The next rule, namely, Rule 6 of Order 34, refers to a sale 'held under the last preceding rule' fetching less than what is due to the decree-holder. This sale may be either of the entire mortgaged property or only of a 'sufficient part thereof within the meaning of Rule 5 (8) of Order 34, Civil P.C. This must necessarily lead to the position that where the property held saleable 'under the decree passed on the mortgage has been put to sale, even though it is not the entire property covered by the mortgage, the decree-holder is entitled to ask for a simple money decree under Order 34, Rule 6, Civil P.C. If the view taken by the Courts below was accepted, it would necessarily conflict with the implications of Br. 5 and 6 of Order 34, Civil P.C., apart from its being contrary to the rulings I have already cited. In my judgment the appellant was perfectly entitled to apply under Order 34, Rule 6, and his application was wrongly dismissed by the Courts below.

8. I, therefore, allow this appeal, set aside the orders of the Courts below and direct the trial Court to proceed to decide the appellant's application for a decree to be passed under Order 34, Rule 6, Civil P.C., according to law.

9. The appellant will be entitled to his costs-so far incurred.


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