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Ramdeo Ram Vs. Frank Combs and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All437; 117Ind.Cas.614
AppellantRamdeo Ram
RespondentFrank Combs and ors.
Cases ReferredNotam Dass v. Lachhman Singh A.I.R.
Excerpt:
- - 3. the trial court found as a matter of fact that the plaintiff had not given notice to the respondent when applying for execution or when applying, for his name to be entered in a pending execution file in the place of the decree-holder (whichever was the fact). it went on, however, to say that failure to give notice by the plaintiff could not possibly prejudice the respondent except so far as it might prevent the respondent from obtaining any balance of sale proceeds available for him as second mortgagee after the sum due on the plaintiff's first mortgage was paid. he might well have preferred retention, as usufructuary mortgagee, of possession of the property to any problematic chance of getting any surplus......mortgagee and that decree is transferred, it is conceivable that the second mortgagee if given notice of execution by the transferee of the decree, might be in a position to plead some arrangement with the decree-holder before assignment of the decree, which would prevent execution taking place. any way, the law is designed to give a judgment-debtor an opportunity to object to execution and the evasion of any procedure that is required by law cannot subsequently be defended on the ground that it has occasioned no harm. all this argument really comes to the single plea that the respondent has not been prejudiced by the trial court's order.5. then it is argued that this court is a court of equity. but it is not within the function, even of a court of equity to contravene a direct.....
Judgment:

Ashworth, J.

1. This second appeal arises out of a suit brought by the plaintiff-appellant for a declaration that he is the owner of certain property, or in the alternative for possession of property. The plaintiff's case was as follows: One Zalim Singh took a first mortgage on the property. The property was again mortgaged by the mortgagor to Mr. Frank Combs, defendant-respondent. Zalim Singh sued on his mortgage, making Mr. Combs a party and got a decree for whole of the property. It appears that decree was not framed in the proper form. The proper form is given as No. 7 of Appendix D of the schedule to the Civil Procedure Code and provides for the proceeds of the sale of the property being paid first to the first mortgagee and any balance to the second mortgagee. The decree as framed used the words of Order 34, Rule 4, directing the proceeds to be applied in payment of what was due to the first mortgagee and the balance to be paid to the defendant or other persons entitled to receive the same. I am of the opinion however, that the decree may be interpreted in the same way as it would have been if it had been in form 7.

2. It is not clear from the record whether Zalim Singh applied for execution. All that is certain is that the plaintiff-appellant made an application either to be substituted in pending execution proceedings taken out already by Zalim Singh (this is stated in the plaint) or himself, after transfer of the decree to him by Zalim Singh, moved the Court for execution. It does not appear to me to make any material difference which was the case, and for the purpose of this judgment I will assume that the latter was the case. When the plaintiff applied for execution he ought under Order 21, Rule 16, to have had notice of his application served on the judgment-debtors. He had it served on the mortgagor but did not have it served on the respondent, second mortgagee. The property was sold and purchased by the plaintiff first mortgagee. It does not appear whether there was any balance to pay to the second mortgagee after the first mortgagee was paid: possibly not. The plaintiff has met with opposition from the respondent in getting his name substituted in the village papers. The revenue officer directed that the plaintiff having sold up the interest of the mortgagor and having purchased that interest should be entered as mortgagor and the respondent as second mortgagee should be entered as mortgagee. Hence this suit.

3. The trial Court found as a matter of fact that the plaintiff had not given notice to the respondent when applying for execution or when applying, for his name to be entered in a pending execution file in the place of the decree-holder (whichever was the fact). It went on, however, to say that failure to give notice by the plaintiff could not possibly prejudice the respondent except so far as it might prevent the respondent from obtaining any balance of sale proceeds available for him as second mortgagee after the sum due on the plaintiff's first mortgage was paid. Accordingly it accepted an offer of counsel for the plaintiff of the full sum due under the second mortgage and decreed possession to the plaintiff on condition that this sum was paid to the respondent. In first appeal the Subordinate Judge has held that under Order 21, Rule 16, the sale of the property was ineffectual for want of notice to the respondent. He has also held that the Munsif could not allow the plaintiff to get possession by redemption of the respondent. The plaintiff appeals. In this Court his counsel's argument is that the respondent, even if he had got notice, could not possibly have resisted the application for sale of the property, and that the only possible way in which he can have been prejudiced by want of that notice was by losing an opportunity possibly to lay claim to any balance payable to him as second mortgagee. Order 21, Rule 16, however, does not appear capable of being construed, in my opinion, otherwise than as absolutely requiring that any judgment-debtor must have notice and has enacted that the execution proceedings subsequently taken in the absence of such notice are absolutely void. This was held in Kassum Goolam Hussein v. Dayabhai Amarsi [1912] 36 Bom. 58. That decision has been followed in Notam Dass v. Lachhman Singh A.I.R. 1921 Lah. 143, where other decisions on the same lines have been quoted. Whatever injustice the mandatory nature of Order 21, Rule 16, may work, it does not appear to me to be possible to evade its clear provisions.

4. The question then arises, however, whether the respondent in this second appeal should be regarded as a judgment-debtor within the meaning of Order 21,R. 16. It has been argued by the appellant's counsel that no execution of the decree was sought against the respondent but only against the mortgagor, and that being so, it is the mortgagor alone who should have been regarded as the judgment-debtor. It is to be observed, however, that the second mortgagee was a party to the suit on the mortgage, and that the decree had this effect as against him that the property would be sold, and that he would no longer have any right to execute his second mortgage against it. It cannot, therefore be said that he was not a person directly affected by the decree. The mere fact that under the mortgage decree, as properly framed, he should have been given a right to a balance of the sale proceeds, Cannot alter the fact that the decree was against him to the extent stated. He might well have preferred retention, as usufructuary mortgagee, of possession of the property to any problematic chance of getting any surplus. As to the argument that if the decree of the trial Court is restored the respondent will have got all that he could possibly be entitled to, this may be true; but where the law is clear as to the method in which a person's right may be secured to him, it can be no answer that these rights are secured to him in a different way to that enjoined by the law. Moreover in considering the legality of the execution we have to see what was the position of the parties at the time of execution and not their position subsequently. Where a decree is obtained against a mortgagor and second mortgagee and that decree is transferred, it is conceivable that the second mortgagee if given notice of execution by the transferee of the decree, might be in a position to plead some arrangement with the decree-holder before assignment of the decree, which would prevent execution taking place. Any way, the law is designed to give a judgment-debtor an opportunity to object to execution and the evasion of any procedure that is required by law cannot subsequently be defended on the ground that it has occasioned no harm. All this argument really comes to the single plea that the respondent has not been prejudiced by the trial Court's order.

5. Then it is argued that this Court is a Court of equity. But it is not within the function, even of a Court of equity to contravene a direct provision of the Code in order to attain an equitable result, nor can it execuse a breach of a mandatory rule on the ground that it has resulted in justice. The last argument by appellant's counsel is that the sale of the property should be upheld against the mortgagor even if held invalid against the respondent, second mortgagee. It is impossible for a sale to be both valid and invalid, and in any case as this appeal is between the second mortgagee and the first mortgagee the sale must be held invalid for the purposes of this appeal. I must admit that in this case I should have been very glad to see my way to grant the appeal and restore the decree of the trial Court, but it appears to me that to do so would be contrary to law, and as such more undesirable than having to acquiesce in the plaintiff losing the property owing to an omission which may as a matter of fact not have prejudiced the respondent. At the same time I think that the appellant should have leave to appeal. The appeal is dismissed with costs.


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