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Babu Lal Vs. Raghunandan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in138Ind.Cas.372
AppellantBabu Lal
RespondentRaghunandan
Cases ReferredBadal Singh v. Debi Saran Dhar Dube
Excerpt:
civil procedure code (act v of 1908), order xxxiv, rule 6 - transfer of property act (iv of 1882), section 68(b)--mortgage decree--third party establishing his right to mortgaged property before sale--application for personal decree--maintainability. - - debi saran dhar dube air1927all395 by a bench of which one of us was a member la that case not only was there a decree for sale but the whole of the plaintiffs claim was satisfied by the sale proceeds, and it was only afterwards that a suit was brought by the mortgagor's grandson declaring the mortgage in the decree and its subsequent sale void......plaintiff. there are numerous decisions of this court to the effect that when there has been no sale an application under rule 6 of order xxxlv, does not lie. we have been referred to certain decisions where although there has been a sale, the sale has been tubsequenfcly nullified in particular to a decision reported as badal singh v. debi saran dhar dube : air1927all395 by a bench of which one of us was a member la that case not only was there a decree for sale but the whole of the plaintiffs claim was satisfied by the sale proceeds, and it was only afterwards that a suit was brought by the mortgagor's grandson declaring the mortgage in the decree and its subsequent sale void. the bench in that case held that as there had been a sale, it was possible to apply the provisions of rule 6.....
Judgment:

1. One application in revision, one second appeal and one appeal from the order of a Munsif which is connected with the said application for revision and second appeal have come before us in the following circumstances. In the year 1924, Raghunandan obtained a decree against Babu Lal on a mortgage which had been executed in the year 1913. On the 2nd of July, 1925, he obtained a final decree, but he never brought the property to sale because one Datti Lal brought a suit for a declaration that the mortgaged property belonged to him (Datti Lal) and not to the mortgagor Babu Lal, and this suit was decreed in favour of Datti Lal on 13th February, 1926. On the 30th of August, 1927, Raghunandan applied for a decree under Rule 6 of Order XXXIV, of the Civil Procedure Code and obtained a decree ex parte on 22nd October, 1927. Babu Lal applied for setting aside the ex parte decree and at first his application was dismissed on a technical ground. The decision of the Munsif dismissing the application was upheld in appeal by the District Judge but set aside finally by the High Court which directed that the Munsif should consider Babu Lal's application for setting aside the ex parte decree on its merits. The Munsif held that Babu Lal had not been served with a summons and set aside the ex parte decree, and a revision against that decree (Civil Revision No. Order 135 of 1931) has been presented by Raghunandan and is one of the three decisions which are now before us. The Munsif on the merits of the case decided against the decree holder and the appeal against that decision of the Munsif was transferred by us from the court of the District Judge to be heard along with the application for revision.

2. Babu Lal on his part brought a regular suit to have the ex parte decree set aside en the ground that it had been obtained by fraud but the District Judge on appeal found, against him and a second appeal against that decision is the third matter which we have to decide.

3. As to the application in revision we say very shortly that there is no ground for a revision as required by the Civil Procedure Code. The only point argued is that the Munsif had no jurisdiction to set aside the decree, on his finding that Babu Lal had not been served with a summons, in view of the fact that in the regular suit brought by Babu Lal the District Judge in appeal expressed an opinion showing that he disagreed with the view taken by the Munsif as to the service of summons. The finding of the learned District Judge has in no way affected the jurisdiction of the Munsif as all that the District Judge has to decide, and all that he did decide as is clear from his judgment was that the decree had not been obtained by fraud. It is not even inconsistent with the decision of the District Judge to hold that the summons was not actually delivered and certainly there is no question that the Munsif had no jurisdiction to make the order against which this application has been filed. We accordingly dismiss the application in revision.

4. In the appeal against the decision of the Munsif on the merits that the decree-holder could not succeed in an application for a personal decree under Rule 6 of Order XXXIV, of the Civil Procedure Code, the appellant is met by the initial difficulty which is in our opinion insuperable that in this case there has been no sale. Rule 6 of Order XXXIV, applies to only cases where there has been a sale and where the proceeds of the sale are found to be insufficient to pay the amount due to the plaintiff. There are numerous decisions of this Court to the effect that when there has been no sale an application under Rule 6 of Order XXXLV, does not lie. We have been referred to certain decisions where although there has been a sale, the sale has been tubsequenfcly nullified in particular to a decision reported as Badal Singh v. Debi Saran Dhar Dube : AIR1927All395 by a Bench of which one of us was a member la that case not only was there a decree for sale but the whole of the plaintiffs claim was satisfied by the sale proceeds, and it was only afterwards that a suit was brought by the mortgagor's grandson declaring the mortgage in the decree and its subsequent sale void. The Bench in that case held that as there had been a sale, it was possible to apply the provisions of Rule 6 of Order XXXIV, of the Civil Procedure Code. We cannot consider that case to be an authority for the argument raised by the appellant in the present case. A further point was argued in the lower Court namely that the appellant should be held to have a remedy under Section 68(b) of the Transfer of Property Act. We do not consider that this is a question which can be decided in an application under Order XXXIV, Rule 6 of the Civil Procedure Code. If the terms of that order do not apply, the appellant cannot go beyond them to obtain a relief of a different nature in the present proceeding. We accordingly dismiss this appeal.

5. There remains only the appeal filed by Babu Lal against the decision of the District Judge to which we have referred above. In view of our decisions on the revision application and the appeal filed by Raghunandan the learned Counsel for Babu Lal does not wish to press this appeal which is accordingly dismissed. We consider that both in the revision and in the two appeals it is proper that the parties should bear their own costs throughout and we order accordingly.


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