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Thakur Mordhaj Singh Vs. Jahangiri Mal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in28Ind.Cas.428
AppellantThakur Mordhaj Singh
RespondentJahangiri Mal and ors.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 33 - appellate court, power of, to set right decree although respondent not appealing. - - the order of the court 'below is clearly wrong, bat it would be most inequitable to merely set it aside as suggested by the judgment-debtors with the probable result of putting an end to further execution of the decree......by the second mortgage, only 1 biswa 12 biswansis 16 kachwansis were included in the 5 biswas-share mortgaged by the first deed, and the remaining 7 biswanis 4 kachwansis were outside the 5 biswas-share. the court passed a peculiar decree, which provided that the shares included in the first mortgage should be sold separately for the recovery of rs. 1,876-4-0 declared to be due on that mortgage and that if there was a balance after discharging that amount then the whole of to much of the balance as was attributable to nausana and part of the balance attributable to partauli (i.e. a part bearing the same proportion to the whole as 1 biswa 12 biswansis 16 kachwansis bear to 5 biswas) should be devoted towards the discharge of the second mortgage. in passing we may observe that the.....
Judgment:

1. This appeal arises out of proceedings taken to execute a decree for sale passed in a suit upon two mortgages dated June 18th 1888 and August 18th 1894. The earlier mortgage comprised 5 biswas of a village called Partaul and 5 biswansis of a village called Nausana. The later mortgage was of a 2 biswas-share in Partauli and a 5 biswansis-share in Nausana. In the suit on the mortgages it was held that the same 5 biswansis-share in Nausana was covered by both mortgages, but that of the 2 biswas-share in Partauli covered by the second mortgage, only 1 biswa 12 biswansis 16 kachwansis were included in the 5 biswas-share mortgaged by the first deed, and the remaining 7 biswanis 4 kachwansis were outside the 5 biswas-share. The Court passed a peculiar decree, which provided that the shares included in the first mortgage should be sold separately for the recovery of Rs. 1,876-4-0 declared to be due on that mortgage and that if there was a balance after discharging that amount then the whole of to much of the balance as was attributable to Nausana and part of the balance attributable to Partauli (i.e. a part bearing the same proportion to the whole as 1 biswa 12 biswansis 16 kachwansis bear to 5 biswas) should be devoted towards the discharge of the second mortgage. In passing we may observe that the decree does not indicate how the balance, if tiny, was to be divided between the two villages, hut we assume that the intention was that the balance should be divided between the two shares in proportion to the sums realised by the sale thereof. The decree went on to provide that the 7 biswansis 4 kachwansis-share in Partauli should be sold and the proceeds along with the balance aforesaid should be devoted to the discharge of the second mortgage. In July 1914 the judgment-debtors paid Rs. 2,085 into Court, that being the amount then due on the first mortgage, and claimed that it should be received by the decree-holders on account of that mortgage alone, and that that mortgage should be declared to have been discharged. The decree-holders objected and the Court held with them that the payment must he taken to have been made on account of the whole decree. The judgment-debtors appealed to this Court but their appeal was dismissed. In February 1914 the decree-holders made the application for execution out of which this appeal has arisen, praying that the property might be sold in accordance with the directions contained in the decree. The judgment-debtors objected that the first mortgage had been discharged by the payment of 1913 and that the decree-holders were entitled only to bring to sale the 7 biswansis 4 kachwansis-share in Partauli. The Court below has held that the decree-holders are entitled to bring to sale a 2 biswas-share in Partauli and a 5 biswansis-share in Nausana for recovery of the balance due under the decree, that is to say, the amount due under the second mortgage. We cannot follow fie Subordinate Judge in his construction, of the decree. In our opinion the judgment-debtors cannot go behind the previous decision that the payment made by them was made on account of the decree as a whole. We held that the decree-hold era are entitled to execute the decree in accordance with its terms, i.e., they are entitled to bring to sale the 5 biswas-share in Partauli and the 5 biswansis-share in Nausana. Out of the proceeds the first mortgage should be discharged and the balance, if any, should be dealt with as directed, by the decree, i.e., 41/125ths of the balance attributable to the share in Partauli and the whole balance attributable to the share in Nausana should he devoted to the discharge of the second mortgage, and then if necessary the 7 biswansis 4 kachwansis share in Partauli should be sold. The amount paid in by the judgment-debtors should be treated as part satisfaction of the decree as a. whole and dealt with in the usual way. The only question is whether we can make an order to this effect now, seeing that the Court below has made an order giving the decree-holders less than they are entitled to and the decree-holders have not appealed against it. Order XLI, Rule 33, empowers us to pass such an order if we think fit to do so. On a full consideration of all the circumstances, we have come to the conclusion that we ought to take advantage; of this rule. The order of the Court 'below is clearly wrong, bat it would be most inequitable to merely set it aside as suggested by the judgment-debtors with the probable result of putting an end to further execution of the decree. In 1913 the judgment-debtors sought be take advantage of the peculiar nature of the decree and prevent the decree holders from enforcing their security. That attempt was frustrated by the Court. Their present objection is another dishonest attempt to deprive the decree-holders of the fruits of their decree. We, there lore, allow this appeal and set aside the order of the Court below, hut we direct that the decree be executed in the manner laid down in the decree, that is to say, that the 5 biswas-share in Partauli and the 5 biswansis-share in Nausana be sold and the proceeds be devoted to discharging the first mortgage, that the balance be dealt with as provided by the decree, and that the 7 biswansis 4 kachwansis share in Partauli be sold and the proceeds together with the balance aforesaid be devoted to discharging the second mortgage, and that the sum paid into Court by the judgment-debtors be credited towards the decree as a whole. The parties will pay their own costs in this Court. The judgment-debtors will pay the decree-holders costs in the Court below.


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